Filed 3/27/14

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JEFFREY DAVID ALLEN FRIDAY,

Defendant and Appellant.

 H039404

 (Santa Clara County

 Super. Ct. No. C1240683)

Penal Code section 1203.067 requires any person placed on probation for a 

registerable sex offense to waive the privilege against self-incrimination and waive the 

psychotherapist-patient privilege. This case concerns the constitutionality of requiring 

these waivers as probation conditions.

First, we hold that the condition requiring a waiver of the privilege against selfincrimination is prohibited by the Fifth Amendment under Minnesota v. Murphy (1984) 

465 U.S. 420 (“Our decisions have made clear that the State could not constitutionally 

carry out a threat to revoke probation for the legitimate exercise of the Fifth Amendment 

privilege.”). (Accord United States v. Saechao (9th Cir. 2005) 418 F.3d 1073; United 

States v. Antelope (9th Cir. 2005) 395 F.3d 1128; State v. Eccles (1994) 179 Ariz. 226.)

Second, we construe the waiver of the psychotherapist-patient privilege as 

requiring waiver only insofar as necessary to enable communication between the 

probation officer and the psychotherapist. We hold that the waiver as construed in this 

fashion is not overbroad in violation of defendant’s constitutional right to privacy.
2

I. FACTUAL AND PROCEDURAL BACKGROUND

Defendant Jeffrey David Allen Friday pleaded no contest to possession of child 

pornography, which he had downloaded to his computer. (Pen. Code, § 311.11, subd. 

(a).)1 The record contains almost no facts about the offense. It occurred on or about 

August 2, 2012. The trial court found “this is a matter which was initiated by a search 

warrant on the defendant’s computer looking for child porn. It has been determined that 

he had been downloading since he was 14 or 15 . . . .” Defendant was 19 at the time of 

the offense. The parties stipulated to a factual basis in the police reports, but the record 

contains no reports. Because the offense involved “no identifiable victim,” the probation 

officer did not assess defendant’s level of risk as a future offender. Defendant had 

suffered no prior convictions. 

Defendant entered into a plea agreement by which he pleaded no contest to the 

charged offense in exchange for six months in county jail with no early release.2 The 

court suspended imposition of the sentence and granted a three-year term of probation, 

including six months in county jail and mandatory participation in a sex offender 

management program as probation conditions. 

The court ordered the following five probation conditions, among others, requiring 

defendant: (1) to waive any privilege against self-incrimination and participate in 

polygraph examinations, which must be part of the sex offender management program; 

(2) to waive any psychotherapist/patient privilege to enable communication between the 

sex offender management professional and the probation officer; (3) not to purchase or 

possess any pornographic or sexually explicit material as it relates to minors, as defined 

by the probation officer; (4) not to possess or use any data encryption technique program; 

 

1

Subsequent undesignated statutory references are to the Penal Code.

2

The plea agreement applied only to the length of time in custody, not to the 

imposition of probation or any probation condition. 
3

and (5) not to frequent, be employed by, or engage in any business where pornographic 

materials are openly exhibited. As to the waivers of the privilege against selfincrimination and the psychotherapist-patient privilege, the court ordered these conditions

as mandated by section 1203.067.

At sentencing, defendant lodged two objections relevant here. He objected on 

Fifth Amendment grounds to the waiver of his privilege against self-incrimination. He 

objected on overbreadth grounds to the condition that he not purchase or possess 

pornographic material. The trial court overruled defendant’s objections.

II. DISCUSSION

On appeal, defendant contends the probation conditions requiring waiver of the 

privilege against self-incrimination and waiver of the psychotherapist-patient privilege

are overbroad in violation of his constitutional rights. He also challenges as overbroad 

the condition requiring him to participate in polygraph examinations. Lastly, he 

challenges as vague and lacking in scienter requirements the conditions prohibiting

purchase or possession of pornography, possession or use of data encryption, and

frequenting businesses where pornography is exhibited.

A. The Statutory Scheme and Applicable Regulations

Under section 1203.067, subdivision (b)(2), any person placed on formal 

probation on or after July 1, 2012, for any offense requiring registration under sections

290 through 290.023, “shall successfully complete a sex offender management program, 

following the standards developed pursuant to Section 9003, as a condition of release 

from probation.”3 Subdivision (b)(3) requires “Waiver of any privilege against self-

 

3

Section 1203.067, subdivision (b)(1), also requires persons placed on probation 

for registerable sex offenses prior to July 1, 2012 to participate in a sex offender 

management program. The waivers at issue in this case do not apply retroactively to 

probationers whose crimes occurred before the September 9, 2010 effective date of the 

amendment that added the waivers. (People v. Douglas M. (2013) 220 Cal.App.4th 1068, 

1077.)
4

incrimination and participation in polygraph examinations, which shall be part of the sex 

offender management program.” Subdivision (b)(4) requires “Waiver of any 

psychotherapist-patient privilege to enable communication between the sex offender 

management professional and supervising probation officer, pursuant to Section 

290.09.”4

The Legislature enacted these provisions in 2010 to amend the Sex Offender 

Punishment, Control, and Containment Act of 2006 (hereafter, the “Containment Act”). 

(Stats. 2010, ch. 219, § 17.) The Containment Act created “a standardized, statewide 

system to identify, assess, monitor and contain known sex offenders for the purpose of 

reducing the risk of recidivism posed by these offenders, thereby protecting victims and 

potential victims from future harm.” (§ 290.03, subd. (b), Stats. 2006, ch. 337, § 12.) 

Before the 2010 amendment, persons placed on probation for certain sex crimes were 

placed in “an appropriate treatment program designed to deal with child molestation or 

sexual offenders . . . .” (§ 1203.067, former subd. (b), Stats. 1994, ch. 918, § 1.) The 

2010 amendment removed this provision; the Containment Act now requires participation 

in an “approved sex offender management program” certified by the California Sex 

Offender Management Board (CASOMB). (§ 9003.) 

Under section 9003, CASOMB promulgates standards for certification of sex 

offender management programs and “sex offender management professionals.” (§ 9003, 

subds. (a) & (b).) Such programs “shall include treatment, as specified, and dynamic and 

future violence risk assessments pursuant to Section 290.09.” (§ 9003, subd. (b).) 

Furthermore, sex offender management programs “shall include polygraph examinations 

by a certified polygraph examiner, which shall be conducted as needed during the period 

that the offender is in the sex offender management program.” (Ibid.)

 

4

The same two waiver conditions apply to parolees. (§ 3008, subds. (d)(3) & 

(d)(4).)
5

Section 290.09 specifies that “The certified sex offender management professional 

shall communicate with the offender’s probation officer or parole agent on a regular 

basis, but at least once a month, about the offender’s progress in the program and 

dynamic risk assessment issues, and shall share pertinent information with the certified 

polygraph examiner as required.” (§ 290.09, subd. (c).) Section 290.09 further requires

the sex offender management professional to administer a State-Authorized Risk 

Assessment Tool for Sex Offenders (SARATSO) in two forms—the “SARATSO 

dynamic tool” and the “SARATSO future violence tool”—and to send the person’s 

scores on these tests to the probation officer. (§ 290.09, subd. (b)(2).) The probation 

officer must then transmit the scores to the Department of Justice, which makes the 

scores accessible to law enforcement officials through the Department’s website. (Ibid.)

Section 9003 requires CASOMB to publish on its website the certification 

requirements for sex offender management programs and professionals.5 To be certified 

under these standards, sex offender management programs must implement a 

“Containment Model” approach to managing sex offenders. (Cal. Sex Offender 

Management Bd., Sex Offender Treatment Program Certification Requirements at p. 6.)

6

 

The central goal of the Containment Model is “community and victim safety, a goal 

which is supported by adopting a victim-centered perspective on all aspects of sex 

offender management.” (Ibid.) The model is implemented by a “Containment Team,” 

whose members include the probation officer, the treatment provider, and the polygraph 

examiner. (Id. at p. 2.) “On a regular basis or on an as-needed basis, the containment 

 

5 We take judicial notice of these materials. (Evid. Code, §§ 452, 459.) Pursuant 

to Evidence Code section 455, subdivision (a), we requested letter briefs on the propriety 

of taking judicial notice of these documents. Neither party objected. Contemporary 

copies of the cited documents have been placed on file with the clerk of the court.

6

This document is online at:

<http://www.cce.csus.edu/portal/admin/handouts/CASOMB Program 10-29-13 

complete.pdf> [as of Mar.27, 2014].
6

team may also include others who play an important role in the management of any 

specific offender. These may include representatives of law enforcement . . . .” (Id. at

p. 6.)

The Containment Model “stresses the importance of open ongoing collaboration 

between these key players.” (Cal. Sex Offender Management Bd., Sex Offender 

Treatment Program Certification Requirements, supra, at p. 6.) The “core elements” of 

the model include “[a]uthoritative criminal justice supervision and monitoring [. . .] to 

exert external control over offenders. Probation and parole agencies apply pressure 

through clear expectations and through the use or threatened use of sanctions to ensure 

that the offender complies with supervision conditions, including participation in 

specialized treatment.” (Ibid.) In contradiction to the language of section 1203.067, the 

standards state that “Invocation of the Fifth Amendment right to not incriminate oneself 

during a sexual history polygraph cannot legally result in revocation.” (Id. at p. 7.) 

Additionally, “Polygraph examinations are used to enhance the assessment process and to 

help monitor the sex offender’s deviant fantasies and external behaviors, including access 

to potential victims.” (Ibid.)

All polygraph examiners working with a certified sex offender management 

program must meet CASOMB-promulgated certification standards, published on the 

CASOMB website. (Cal. Sex Offender Management Bd., Post-Conviction Sex Offender 

Polygraph Standards at p. 1.)7 The standards set forth a model policy, program goals, the 

various types of examinations to be administered, and the types of questions that 

examinations should include, among other criteria. Examinations should last at least 90 

minutes, and examiners may test a probationer up to five times in one day. (Id. at p. 6.) 

 

7

This document is online at: 

<http://www.casomb.org/docs/Polygraph_Standards_FINAL.PDF> [as of Mar. 27, 

2014].
7

However, examiners should not administer more than four separate examinations to the 

same probationer in one year, “except where unavoidable or required by law or local 

regulation. This does not include re-testing due to a lack of resolution during an initial or 

follow-up examination.” (Ibid.)

Although examiners “should have the final authority and responsibility for the 

determination of test questions and question language,” the examiner should 

communicate with other team members about what questions to ask. (Cal. Sex Offender 

Management Bd., Post-Conviction Sex Offender Polygraph Standards, supra, at pp. 9-

11.) The results of certain exams and the information gained from them should be 

provided to other team members. (Id. at p. 12.) Furthermore, “Except as provided by 

law, information from the polygraph examination and test results (outcomes) should be 

kept confidential and provided only to those involved in the containment approach to the 

supervision and treatment of sex offenders.” (Id. at p. 5.) Examiners, however, “should 

not interfere with or circumvent the efforts of any open or ongoing investigation of a new 

criminal allegation.” (Ibid.)

The several types of polygraph examinations include “instant offense exams,” 

“prior-allegation exams,” “sexual history disclosure exams,” and “sex offense monitoring 

exams,” as well as subcategories of these exams. (Cal. Sex Offender Management Bd., 

Post-Conviction Sex Offender Polygraph Standards, supra, at p. 10.) These exams have 

explicitly investigative components. Instant offense exams may be used “to test the 

limits of an examinee’s admitted behavior and to search for other behaviors or offenses 

not included in the allegations made by the victim of the instant offense.” (Id. at p. 11.) 

“Examiners, along with the other members of the community supervision team, should 

select relevant targets from their concerns regarding additional or unreported offense 

behaviors in the context of the instant offense.” (Ibid.) Questions about illegal conduct 

are not limited to sex offenses; they may include, but are not limited to, questions about 

the use or distribution of illegal drugs or controlled substances. (Id. at p. 21.)
8

The prior-allegation exam is used to probe prior alleged offenses, regardless of 

whether the probationer was charged with these alleged offenses. “Examiners should use 

the Prior Allegation Exam (PAE) to investigate and resolve all prior alleged sex offenses 

(i.e., allegations made prior to the current conviction) before attempting to investigate 

and resolve an examinee’s history of unknown sexual offenses.” (Cal. Sex Offender 

Management Bd., Post-Conviction Sex Offender Polygraph Standards, supra, at p. 12.) 

Similarly, the sexual history exams should be used “to investigate the examinee’s history 

of involvement in unknown or unreported offenses and other sexual compulsivity, sexual 

pre-occupation, or sexual deviancy behaviors.” (Ibid.) To discover “unreported 

victims,” examiners should “thoroughly investigate the examinee’s lifetime history of 

sexually victimizing others, including behaviors related to victim selection, victim access, 

victim impact, and sexual offenses against unreported persons.” (Id. at p. 13.) The sex 

offense monitoring exam may be used at the request of other team members “to explore 

the possibility the examinee may have been involved in unlawful sexual behaviors 

including a sexual re-offense” during the period of supervision. (Cal. Sex Offender 

Management Bd., Post-Conviction Sex Offender Polygraph Standards, supra, at p. 22.)

Examiners should make a complete audio-visual or audio recording of all exams. 

(Cal. Sex Offender Management Bd., Post-Conviction Sex Offender Polygraph 

Standards, supra, at p. 25.) Furthermore, “Examiners should obtain an examinee’s 

agreement, in writing and/or on the audio/video recording, to a waiver/release statement.” 

The language of this “agreement” should include, among other things, “1) the examinee’s 

voluntary consent to take the test, 2) that the examination may be terminated at any time,

[. . .] 4) that all information and results will be released to professional members of the 

community supervision team, 5) an advisement that admission of involvement in 

unlawful activities will not be concealed from the referring professionals[,] and 6) a 
9

statement regarding the requirement for audio/video recording of each examination.”

8

 

(Ibid.) The standards advise, “Examiners should exercise caution to ensure they do not 

violate any rights of examinees regarding answering questions about criminal behaviors.” 

(Id. at p. 9.) But the document provides no description of those rights and no explanation 

for how an examiner should reconcile this advice with any other standards. The 

standards do not require examiners to undergo legal training on this or any other issue.

B. Waiver of Any Privilege Against Self-Incrimination

By requiring a “[w]aiver of any privilege against self-incrimination,” section 

1203.067, subdivision (b)(3) implicates defendant’s rights under the Fifth Amendment’s

Self-Incrimination Clause.

9

To determine the effect of the waiver, we first examine the 

general contours of the implicated rights. We then consider the reach of those rights in 

the probation context.

1. The Privilege Against Self-Incrimination

The Fifth Amendment to the United States Constitution provides that no person 

“shall be compelled in any criminal case to be a witness against himself . . . .” (U.S. 

Const., 5th Amend.) The Self-Incrimination Clause thereby protects one from being 

forced to testify against oneself in a criminal proceeding. “[B]ut it does more than that.” 

(Spielbauer v. County of Santa Clara (2009) 45 Cal.4th 704, 714 (Spielbauer).) As the 

United States Supreme Court has recognized, “The privilege reflects a complex of our 

 

8

The standards do not address the waiver requirements of sections 1203.067 or 

3008.

9

The Fifth Amendment applies to the states via the Fourteenth Amendment. 

(Malloy v. Hogan (1964) 378 U.S. 1.) State law also provides rights against selfincrimination. (Cal. Const., art. 1, § 15; Evid. Code, § 940; Izazaga v. Superior Court

(1991) 54 Cal.3d 356, 372 [“[T]he California Constitution continues to afford criminal 

defendants an independent source of protection from infringement of certain rights, 

including the privilege against self-incrimination.”].) Because we strike down the waiver 

requirement on federal constitutional grounds, we need not consider the reach of state law 

regarding self-incrimination.
10

fundamental values and aspirations, and marks an important advance in the development 

of our liberty. It can be asserted in any proceeding, civil or criminal, administrative or 

judicial, investigatory or adjudicatory; and it protects against any disclosures which the 

witness reasonably believes could be used in a criminal prosecution or could lead to other 

evidence that might be so used. This Court has been zealous to safeguard the values 

which underlie the privilege.” (Kastigar v. United States (1972) 406 U.S. 441, 444-445, 

fns. omitted (Kastigar).) 

One may invoke the privilege against self-incrimination absent initiation of a 

criminal proceeding. (Chavez v. Martinez (2003) 538 U.S. 760, 770-771 (plur. opn. of 

Thomas, J.) (Chavez).) “It has long been held that this prohibition not only permits a 

person to refuse to testify against himself at a criminal trial in which he is a defendant, 

but also ‘privileges him not to answer official questions put to him in any other 

proceeding, civil or criminal, formal or informal, where the answers might incriminate 

him in future criminal proceedings.’ ” (Minnesota v. Murphy, supra, 465 U.S. at p. 426

(Murphy).) Moreover, “One cannot be forced to choose between forfeiting the privilege, 

on the one hand, or asserting it and suffering a penalty for doing so on the other.” 

(Spielbauer, supra, 45 Cal.4th at p. 714.)

Notwithstanding these protections, the Self-Incrimination Clause does not provide

an absolute right to remain silent. A witness may be compelled to testify—even if doing 

so is self-incriminating—provided the state does not use the testimony, or evidence 

derived from it, in a criminal prosecution of that witness. (Kastigar, supra, at p. 462.)

This is commonly called “use and derivative use immunity.”

10 (Id. at p. 443.) Consistent 

with these principles, state and federal statutes empower prosecutors to grant immunity to 

 

10 By contrast, “transactional immunity” guarantees against any prosecution for the 

implicated offense, even without use of the witness’s statements. (People v. Campbell

(1982) 137 Cal.App.3d 867, 874.) In this opinion, we use the term “immunity” to refer 

only to use and derivative use immunity.
11

a witness prospectively while compelling his or her testimony under threat of contempt. 

(§§ 1324, 1324.1; 18 U.S.C. § 6001 et seq.) Immunity under the Fifth Amendment

further extends to statements compelled outside formal testimonial settings, and it may

apply absent a formal grant of immunity. (Garrity v. New Jersey (1967) 385 U.S. 493, 

495 [police officers’ compelled statements in response to state investigation could not be 

used against them in criminal prosecutions, even without a formal grant of immunity]; 

Spielbauer, supra, 45 Cal.4th at p. 729 [public defender required to make statements in 

response to employer’s investigation enjoys immunity even absent a formal grant of 

immunity].)

Because the probation condition at issue here requires waiver of “any privilege 

against self-incrimination,” (italics added), the plain language necessarily requires 

defendant to forgo any claim of immunity. Without the privilege against selfincrimination, there is no right to immunity.

11 If the statute were somehow construed not

to require a waiver of immunity, it is unclear what else the waiver would accomplish or 

what purpose it would serve. As explained in detail below, the state does not need a 

waiver to require defendant’s participation in treatment or polygraph examinations. He 

can be compelled to answer questions—even if the answers are incriminating—provided 

he retains immunity from the use of his statements in a separate criminal prosecution.

2. Ripeness of the Claim Under the Fifth Amendment

The Attorney General contends the claim is not ripe. She argues that the Fifth 

Amendment would only be violated if defendant’s incriminating statements were used 

against him in a criminal prosecution. Because defendant has not identified any such use 

of his statements, the Attorney General contends he has no Fifth Amendment claim. But 

 

11 Indeed, under the plain language of the statute, the loss of immunity is the 

primary effect of the waiver. (See Chavez, supra, 538 U.S. at pp. 769-771 (plur. opn. of 

Thomas, J.).)
12

the Attorney General does not explain how defendant could protect his Fifth Amendment 

rights in a future criminal proceeding after expressly waiving these rights as a condition 

of probation. “Once an immunity waiver is signed, the signatory is unable to assert a 

Fifth Amendment objection to the subsequent use of his statements in a criminal case, 

even if his statements were in fact compelled. A waiver of immunity is therefore a 

prospective waiver of the core self-incrimination right in any subsequent criminal 

proceeding . . . .” (Chavez, supra, 538 U.S. at p. 768, fn.2 (plur. opn. of Thomas, J.).) 

Thus, a state-compelled, prospective waiver of the privilege against selfincrimination gives rise to a Fifth Amendment claim before a declarant’s incriminating

statements are used in a criminal prosecution, regardless of whether the state ever 

initiates such a prosecution. The Supreme Court’s longstanding “penalty cases” 

jurisprudence established this rule decades ago. (Sanitation Men v. Sanitation Comm’r 

(1968) 392 U.S. 280, 283 [Fifth Amendment violated when state fired public employees 

for invoking and refusing to waive the privilege against self-incrimination]; Gardner v. 

Broderick (1968) 392 U.S. 273, 276 [Fifth Amendment prohibits state from firing 

policeman for refusing to waive the privilege against self-incrimination].)

In Lefkowitz v. Turley (1973) 414 U.S. 70, licensed architects challenged a New 

York statute disqualifying contractors for public contracts if they refused to waive their 

Fifth Amendment immunity. The architects, when called as witnesses before a grand 

jury, refused to sign waivers of immunity. The state had not charged them with any 

crimes, nor used their statements against them in any criminal proceeding. Nonetheless, 

the Supreme Court held that the statutorily compelled waivers violated the SelfIncrimination Clause. The Supreme Court again reaffirmed this principle in Lefkowitz v. 

Cunningham (1977) 431 U.S. 801. There, a New York statute provided that if a political 

party officer was subpoenaed to testify about the conduct of his office but the officer 

refused to testify or waive immunity, the officer was barred from office for five years. 

Cunningham, when subpoenaed to testify before a grand jury, refused to sign a waiver of 
13

immunity, and he was barred from office. The state never threatened or attempted to use 

Cunningham’s statements against him in a criminal prosecution, yet the Supreme Court 

struck down the statute as a violation of the Self-Incrimination Clause. These cases make 

clear that a state-compelled, prospective waiver of immunity violates the SelfIncrimination Clause apart from the use of the compelled statements in any criminal 

proceeding.

The Attorney General relies on language in Maldonado v. Superior Court (2012) 

53 Cal.4th 1112 (Maldonado) for the proposition that the Fifth Amendment is not 

violated until a defendant’s statements are used against him in a criminal proceeding. 

But her reliance on this language ignores the analytical distinction between a violation of 

the “core” Fifth Amendment right and a violation of the “prophylactic” protection 

prohibiting a compelled waiver of immunity as explained in Maldonado and Chavez.

In Maldonado, the California Supreme Court stated that “a ‘core’ Fifth 

Amendment violation is completed, not merely by official extraction of selfincriminatory answers from one who has not waived the privilege, but only if and when 

those answers are used in a criminal proceeding against the person who gave them.” 

(Maldonado, supra, 53 Cal.4th at p. 1128.) (Italics added.) For this principle, the court 

relied on Chavez, supra, 538 U.S. at pp. 766-773 (plur. opn. of Thomas, J.).

In Chavez, the United States Supreme Court considered a civil rights lawsuit under 

42 U.S.C. section 1983 by a plaintiff alleging a violation of the Fifth Amendment. 

Although the plaintiff’s statements were compelled, they were never used against him in 

a criminal prosecution. (Chavez, supra, 538 U.S. at pp. 763-764.) Justice Thomas, 

writing for a plurality of justices, characterized the “core” Fifth Amendment privilege as 

the right not to be a “witness” against oneself in a “criminal case.” (Chavez, at pp. 768-

769 (plur. opn. of Thomas, J.).) But a majority of justices also affirmed longstanding 

“prophylactic” or “complementary” protections under the Fifth Amendment that arise 

prior to and apart from a criminal proceeding. (Id. at p. 770 (plur. opn. of Thomas, J.); id.
14

at pp. 777-778 (conc. opn. of Souter, J.).) The rule prohibiting a compelled waiver of 

immunity is one such protection, and is necessary to protect the “core” right against the 

use of compelled statements in a prosecution. “By allowing a witness to insist on an 

immunity agreement before being compelled to give incriminating testimony in a 

noncriminal case, the privilege preserves the core Fifth Amendment right from invasion 

by the use of that compelled testimony in a subsequent criminal case.” (Id. at p. 771 

(plur. opn. of Thomas, J.).) 

The California Supreme Court in Maldonado did not hold otherwise. There, the 

court considered a discovery rule requiring a defendant who proffered a mental 

incapacitation defense to submit to examination by the prosecution’s mental health 

experts. (§ 1054.3, subd. (b)(1).) The court had no occasion to consider a compelled 

waiver. To the contrary, the court explicitly based its analysis on the uncontroversial 

premise that the defendant maintained his Fifth Amendment immunity unless and until he 

voluntarily waived it by introducing his own statements into evidence at trial: “[T]he 

parties agree that the Fifth Amendment protects petitioner against any direct or derivative 

use of his statements to the prosecution examiners, except to rebut any mental-state 

evidence he presents through his own experts.” (Maldonado, supra, 53 Cal.4th at 

p. 1129, fn. omitted.) “If he decides to abandon the defense, any self-incriminating 

results of the examinations cannot be introduced or otherwise used against him.” (Id. at 

p. 1132.)

Nothing in Maldonado authorizes a compelled waiver of immunity. To the 

contrary, the California Supreme Court explicitly recognized the Chavez plurality’s

affirmation of the so-called “prophylactic rules,” (Maldonado, supra, at pp. 1128-1129),

under the Fifth Amendment: “The rule allowing a witness to assert the privilege prior to 

testifying, and to refuse to testify unless granted immunity, Justice Thomas indicated, 

protects the ‘core’ Fifth Amendment privilege simply by assuring that the witness has not 

forfeited the right against self-incriminating use of his or her testimony in later criminal 
15

proceedings.” (Ibid.) (Italics added.) The court in Maldonado also acknowledged its 

prior holding, set forth at Spielbauer, supra, 45 Cal. 4th at pages 714-730, that a 

compelled waiver of immunity could not be required even in the absence of a criminal 

proceeding. In this regard, our high court noted, “[W]e held that in the context of a 

noncriminal investigation by a public employer, the employee could be compelled to 

answer questions about his performance of duty, even without a formal immunity 

agreement, so long as he was not required to surrender the immunity conferred by the 

Fifth Amendment itself against use and derivative use of his statements to prosecute him 

for a criminal offense.” (Maldonado, supra, at p. 1129.) (Italics added.)

Neither Maldonado nor Chavez purported to overturn the longstanding United 

States Supreme Court doctrine prohibiting compelled waivers of immunity.12 Regardless 

of whether the right against a compelled waiver is characterized as a “core right,” a 

“prophylactic rule,” or “complementary protection,” defendant has standing to assert his 

Fifth Amendment claim here. The Chavez plurality stated this explicitly: “That the 

privilege is a prophylactic one does not alter our penalty cases jurisprudence, which 

allows such privilege to be asserted prior to, and outside of, criminal proceedings.” 

(Chavez, supra, 538 U.S. at p. 772, fn. 3 (plur. opn. of Thomas, J.).)13

 

12 The Ninth Circuit Court of Appeals recognized this as well. “[T]he government 

contends that Chavez stands for the proposition that Antelope may not assert the Fifth 

Amendment right until the moment a compelled statement is used in a criminal 

proceeding against him. But Chavez did not, as the government suggests, unseat decades 

of Supreme Court law. Instead, the government’s argument reveals a fundamental 

misunderstanding of Chavez.” (United States v. Antelope, supra, 395 F.3d at p. 1140.)

13 Defendant also contends the required waiver is unconstitutionally overbroad as a 

probation condition apart from any specific Fifth Amendment violation. California law 

does not require a probationer to suffer a probation revocation or any other harm before 

challenging a probation condition as overbroad. It would be inconsistent to do so here 

simply because defendant’s claim implicates the Fifth Amendment. Indeed, defendant 

challenges three other probation conditions in this case as unconstitutionally vague 

(Cont.)
16

For these reasons, we conclude defendant’s claim under the Fifth Amendment is 

ripe for adjudication here.

3. The Privilege Against Self-Incrimination in the Context of Probation

“Inherent in the very nature of probation is that probationers ‘do not enjoy “the 

absolute liberty to which every citizen is entitled.” ’ [Citation.] Just as other 

punishments for criminal convictions curtail an offender’s freedoms, a court granting 

probation may impose reasonable conditions that deprive the offender of some freedoms 

enjoyed by law-abiding citizens.” (United States v. Knights (2001) 534 U.S. 112, 119.) 

“ ‘Nevertheless, probationers are not divested of all constitutional rights.’ ” (People v. 

Pirali (2013) 217 Cal.App.4th 1341, 1350.) “A probation condition that imposes 

limitations on a person’s constitutional rights must closely tailor those limitations to the 

purpose of the condition to avoid being invalidated as unconstitutionally overbroad.” (In 

re Sheena K. (2007) 40 Cal.4th 875, 890.)

The United States Supreme Court has held the protection of the Self-Incrimination 

Clause, unlike the Fourth Amendment, applies to both prisoners and probationers. “A 

defendant does not lose this protection by reason of his conviction of a crime; 

notwithstanding that a defendant is imprisoned or on probation at the time he makes 

incriminating statements, if those statements are compelled they are inadmissible in a 

subsequent trial for a crime other than that for which he has been convicted.” (Murphy,

supra, 465 U.S. at p. 426.) A blanket waiver of any privilege against self-incrimination

would deprive a probationer of the full spectrum of his rights under the SelfIncrimination Clause—even those protections enjoyed by prisoners in custody. (Baxter 

v. Palmigiano (1976) 425 U.S. 308, 316 [prison inmates compelled to testify at 

disciplinary proceedings must be offered immunity and may not be required to waive it]; 

 

because they lack a scienter requirement. We routinely adjudicate these types of 

claims—prior to the revocation of probation—without any concern for ripeness.
17

McKune v. Lile (2002) 536 U.S. 24, 36 (plur. opn. of Kennedy, J.) [“The privilege 

against self-incrimination does not terminate at the jailhouse door . . . .”].)

In Murphy, Marshall Murphy was prosecuted for criminal sexual conduct. He

pleaded guilty to false imprisonment and received three years’ probation. (Murphy,

supra, 465 U.S. at p. 422.) The terms of Murphy’s probation required him to participate 

in a treatment program for sexual offenders, to report to his probation officer as directed, 

and to be truthful with the probation officer “in all matters.” (Ibid.) In the course of his 

treatment, Murphy confessed to raping and murdering a teenage girl seven years earlier. 

(Id. at p. 423.) His treatment counselor gave this information to the probation officer, 

who then confronted Murphy with it. (Id. at pp. 423-424.) Murphy confessed to the 

probation officer as well, who in turn told the police. (Id. at p. 424.) At no point did 

Murphy invoke the Fifth Amendment. He was later indicted for first degree murder. (Id.

at p. 425.)

The high court found Murphy had voluntarily waived his right against selfincrimination. (Murphy, 465 U.S. at p. 429.) First, the court began its analysis by 

holding that the privilege against self-incrimination applies to probationers. (Id. at 

p. 426.) The court then held that the probation condition requiring Murphy to answer 

questions truthfully did not, by itself, controvert this right; rather, his obligations were no 

different from those of any other witness in a proceeding. “The answers of such a 

witness to questions put to him are not compelled within the meaning of the Fifth 

Amendment unless the witness is required to answer over his valid claim of the 

privilege.” (Id. at p. 427.) (Italics added.) The court then distinguished Murphy’s 

circumstances from cases in which “the state not only compelled an individual to appear 

and testify, but also sought to induce him to forgo the Fifth Amendment privilege . . . .” 

(Id. at p. 434 [citing Lefkowitz v. Turley, supra, 414 U.S., at pp. 79-84 [“a State may not 

impose substantial penalties because a witness elects to exercise his Fifth Amendment 

right not to give incriminating testimony against himself.”]; Sanitation Men v. Sanitation 
18

Comm’r, supra, 392 U.S. at pp. 283-284; Gardner v. Broderick, supra, 392 U.S. at 

pp. 278-279].) “The threat of punishment for reliance on the privilege distinguishes cases 

of this sort from the ordinary case in which a witness is merely required to appear and 

give testimony.” (Murphy, 465 U.S. at p. 435.) Because the state did not punish Murphy 

for relying on the privilege or induce him to forgo it, the court found no Fifth 

Amendment violation. (Id. at p. 436.)

The court also found Murphy could not have reasonably believed that he could be 

punished for invoking the privilege because the law clearly prohibited such punishment. 

(Id. at p. 438.) “Our decisions have made clear that the State could not constitutionally 

carry out a threat to revoke probation for the legitimate exercise of the Fifth Amendment 

privilege. It is not surprising, then, that neither the State court nor any State officer has 

suggested otherwise.” (Ibid.) Thus, Murphy explicitly protects a probationer’s right to 

invoke the Fifth Amendment.

The Attorney General quotes language in a footnote in Murphy stating, “Just as 

there is no right to a jury trial before probation may be revoked, neither is the privilege 

against compelled self-incrimination available to a probationer.” (Murphy, supra,

465 U.S. at p. 435, fn. 7.) The context of the quote, however, makes clear that the court 

was referring solely to the absence of a right to invoke the privilege against selfincrimination in a revocation proceeding in response to inquiries about one’s 

probationary status, such as questions about residence requirements. Such questions

“pose[] no realistic threat of incrimination in a separate criminal proceeding.” (Ibid.) 

Moreover, the court continued, “[A] state may validly insist on answers to even 

incriminating questions and hence sensibly administer its probation system, as long as it 

recognizes that the required answers may not be used in a criminal proceeding and thus 

eliminates the threat of incrimination. Under such circumstances, a probationer’s ‘right 

to immunity as a result of his compelled testimony would not be at stake,’ 

[citations] . . . .” (Ibid.) 
19

Thus, Murphy has long made clear that the use of a probationer’s compelled 

statements in a separate criminal proceeding would violate the Fifth Amendment, and the 

state may not punish a probationer for invoking the Fifth Amendment. More recently, 

California courts have reaffirmed that Murphy stands for this principle. “[I]f the state 

puts questions to a probationer that call for answers that would incriminate him in a 

pending or later criminal proceeding, and expressly or by implication asserts that 

invocation of the privilege would lead to revocation of probation, the answers would be 

deemed compelled under the Fifth Amendment and thus involuntary and inadmissible in 

a criminal prosecution.” (Brown v. Superior Court (2002) 101 Cal.App.4th 313, 320

(Brown); accord United States v. Saechao, supra, 418 F.3d 1073; United States v. 

Antelope, supra, 395 F.3d 1128.) 

We will examine the breadth of the waiver under section 1203.067, subdivision 

(b)(3), in accordance with these principles.

4. Overbreadth of the Waiver of the Privilege Against Self-Incrimination Under 

Section 1203.067, Subdivision (b)(3)

Because the waiver of the privilege against self-incrimination imposes limitation’s 

on a probationer’s constitutional rights, it must be “closely tailored” to its purposes. (In 

re Sheena K., supra, 40 Cal.4th at p. 890.) Neither the language of the waiver provision 

nor the legislative history of the amendment that enacted it specifically states its purpose. 

As a general matter, public safety is “a primary goal” of court-ordered probation 

conditions. (§ 1202.7; People v. Olguin (2008) 45 Cal.4th 375, 379.) Consistent with 

this goal, the overriding purpose of the sex offender treatment program is public safety 

through containment and reduction of recidivism by registered sex offenders: “For the 

safety and well-being of California’s citizens, especially those most vulnerable to sexual 

assault, it is essential to manage known sex offenders living in the state’s communities in 

ways that most effectively reduce the likelihood that they will commit another 

offense . . . .” (Cal. Sex Offender Management Bd., Sex Offender Treatment Program 
20

Certification Requirements, supra, at p. 1.) Treatment and rehabilitation of the offender 

are secondary purposes of the sex offender management program; CASOMB publications 

emphasize the importance of their role in reducing recidivism. (Ibid.) Public safety is 

also the primary goal of polygraph testing as part of the sex offender management 

program. (Cal. Sex Offender Management Bd., Post-Conviction Sex Offender Polygraph 

Standards, supra, at p. 3.)

The reach of the waiver is extraordinarily broad. Subdivision (b)(3) of section 

1203.067 requires waiver of “any privilege against self-incrimination . . . .” (Italics 

added.) By use of the word “any” to modify the term “privilege,” the statute precludes all 

attempts by a probationer, present and future, to seek protection under the SelfIncrimination Clause for compelled statements made during the sex offender 

management program, regardless of the circumstances in which they may arise. The 

statute thereby encompasses a complete waiver of immunity under the Fifth 

Amendment.

14

As to subject matter, the statute imposes no limits on either the topic or the time 

frame of statements that may come under the waiver. The waiver is not limited to 

statements about the offense for which the probationer has been convicted. Anything the 

probationer says could be used against him in any criminal proceeding, whether in the 

instant proceeding or any other. Because the waiver eliminates derivative use immunity, 

his statements could even be used against him in a future criminal prosecution for an 

 

14 At oral argument, the Attorney General argued that the waiver condition does 

not prevent the probationer from invoking the privilege against self-incrimination, even 

after the probationer has been required to waive it. We cannot conceive of—and the 

Attorney General did not put forth—any logical way to reconcile this position. The 

waiver condition would be meaningless if a probationer could simply nullify it by 

invoking the privilege at a later time. For the waiver to have any legal force, it must 

mean the probationer cannot meaningfully invoke the privilege in connection with the sex 

offender management program.
21

offense he commits after the expiration of the probationary period. (Marchetti v. United 

States (1968) 390 U.S. 39, 53; Prudhomme v. Superior Court (1970) 2 Cal.3d 320, 326 

[abrogated on other grounds] [the privilege forbids compelled disclosures which could 

serve as a “link in a chain” of evidence tending to establish guilt of a criminal offense].)

Under this broad waiver, a probationer could be compelled to confess to a crime 

committed long ago, having no relevance to his status as a sex offender. Any such 

confession could be given to police or prosecutors, who could then use it against the 

probationer to initiate an independent prosecution. And law enforcement officials 

seeking to further an independent, on-going prosecution for an unrelated crime could be 

tempted to contact the probation officer and ask that the probationer be questioned about 

it. The probationer could then be questioned aggressively in a custodial environment,

without Miranda warnings, and any claim that his or her statements were coerced or 

involuntary under the Self-Incrimination Clause would be waived.15 These are only a 

few examples of the potential problems that could ensue from such a broad and 

indiscriminate waiver of the privileges against self-incrimination. 

And we cannot effectively cabin the scope of the statute through the proper 

application of the principles of statutory construction. Arguably, because the statute 

requires “Waiver of any privilege against self-incrimination and participation in 

polygraph examinations, which shall be part of the sex offender management program” 

(italics added), the latter conditions could be construed as limiting the waiver solely to 

 

15 The Self-Incrimination Clause provides for the rights set forth in Miranda v. 

Arizona (1966) 384 U.S. 436, as well as a right against the extraction of coerced, 

involuntary confessions. “No doubt the constitutional privilege may, on occasion, save a 

guilty man from his just deserts. It was aimed at a more far-reaching evil—a recurrence 

of the Inquisition and the Star Chamber, even if not in their stark brutality. Prevention of 

the greater evil was deemed of more importance than occurrence of the lesser evil. 

Having had much experience with a tendency in human nature to abuse power, the 

Founders sought to close the doors against like future abuses by law-enforcing agencies.” 

(Ullmann v. United States (1956) 350 U.S. 422, 428.)
22

statements made during a polygraph examination or during the course of the sex offender 

management program. But such a construction would still provide almost no meaningful 

constraints. First, the statute would still place no limits on the subject matter of a 

probationer’s statements subject to the waiver or the questions that could be put to the 

probationer. This would allow for questions about all aspects of a probationer’s past and 

present conduct, whether criminal or otherwise, regardless of whether it has any 

relevance to the instant offense or a probationer’s status as a sex offender. Second, there 

would still be no statutory limitation on who may formulate questions, to whom the 

answers may be given, or for what use they may be available. 

A polygraph examiner, for example, could question the probationer, in the course 

of a video-recorded examination, about matters not directly related to his sex offense, 

such as involvement with illegal drugs. (Cal. Sex Offender Management Bd., PostConviction Sex Offender Polygraph Standards, supra, at p. 21.) The examiner could then 

provide the recording directly to the probation officer or even to law enforcement for use 

in a criminal prosecution against the probationer. (Evid. Code, § 351.1, subd. (b) 

[“Nothing in this section is intended to exclude from evidence statements made during a 

polygraph examination which are otherwise admissible.”].) None of this is forbidden 

under a plain interpretation of the statute. To the contrary, various standards set forth in

CASOMB publications encourage such a chain of events. Although CASOMB standards 

for polygraph examiners state that information from polygraph exams “should be kept 

confidential and provided only to those involved in the containment approach to the 

supervision and treatment of sex offenders,” the standards also make clear that law 

enforcement officials may be made part of the “Containment Team.” (Cal. Sex Offender 

Management Bd., Sex Offender Treatment Program Certification Requirements, supra, at 

p. 6.) (Italics added.) More importantly, the statute contains no language reflecting any 

restrictions on providing information to law enforcement officials.
23

To the contrary, other statutes explicitly require certain members of the 

Containment Team to reveal the probationer’s statements to law enforcement for further 

investigation and prosecution. For example, probation officers, psychotherapists, district 

attorneys and police officers are all “mandated reporters” under the Child Abuse and 

Neglect Reporting Act. (§ 11165.7, subds. (a)(15), (a)(18), (a)(21), & (a)(34).) If any of 

these participants acquire knowledge—or even reasonable suspicion—of any child who 

has been the victim of child abuse or neglect, the participant is required to report the 

information to police or other qualified agencies. Failure to do so is a misdemeanor 

punishable by up to six months confinement in a county jail or by a fine of one thousand 

dollars, or by both. (§ 11166.) 

In conjunction with mandatory reporting requirements and CASOMB standards, a 

blanket waiver of any privilege against self-incrimination results in a process whereby 

suspected offenses based on compelled statements—including those unrelated to the 

underlying offense—are effectively required to be presented for prosecution. First, the 

probationer, upon threat of revocation, would be compelled to submit to a polygraph 

examination. The examiner would then pose a raft of questions purposely designed to 

ferret out both past and current sexual misconduct. The probationer would be forced to 

waive his privilege against self-incrimination and answer the questions. The examiner, 

consistent with CASOMB standards, would then be required to share the results of the 

examination with the probation officer or the prosecutor. These participants, in turn, 

would be compelled to report to the police any information constituting reasonable 

suspicion that the probationer has committed any one of numerous offenses defined as 
24

child abuse and neglect.

16

 The results of this process could then be used against the 

probationer in a subsequent criminal prosecution.

There is no doubt that, in the abstract, a waiver of the privilege against selfincrimination would further public safety if it allowed for the prosecution of a sex 

offender who admits to an ongoing, dangerous offense that would otherwise go 

unreported after invocation of the privilege. But the scope of the waiver at issue here 

reaches too broadly. It allows, for example, use of a probationer’s statements in the 

prosecution of any offense—such as minor drug offenses or prostitution-related 

activities.

17

If the only purpose of the waiver is to compel the probationer to answer questions 

and participate in treatment, no waiver is necessary. As the high court observed in 

Murphy, the Fifth Amendment already allows the state to require a probationer to 

participate in treatment and answer questions truthfully. (Murphy, supra, 465 U.S. at 

p. 427.) Probationers may also be required to undergo polygraph testing, provided the 

questioning relates to successful completion of the therapy program and the crime for 

which the defendant is convicted. (Brown, supra, 101 Cal.App.4th at p. 321; People v. 

Miller (1989) 208 Cal.App.3d 1311, 1315 [“The mere requirement of taking the test in 

itself is insufficient to constitute an infringement of the privilege.”].) And, if the 

circumstances surrounding the questioning are noncustodial, no Miranda warnings are 

 

16 Presumably, “reasonable suspicion” could even include a probationer’s denials, 

if the results of the polygraph exam indicated the probationer was lying. (See, e.g., 

People v. Lara (1974) 12 Cal.3d 903, 909.)

17 CASOMB-promulgated standards specifically advise polygraph examiners to 

inquire about past “prostitution activities” and use of drugs, among other illegal conduct.

(Cal. Sex Offender Management Bd., Post-Conviction Sex Offender Polygraph 

Standards, supra, at pp. 17, 21.)
25

required.18 (Murphy, supra, at p. 433.) If the probationer does not invoke the privilege 

against self-incrimination, the privilege is waived voluntarily. Absent some other 

restriction, then, a probationer’s statements may be used against him or her in a separate 

criminal prosecution. (Id. at p. 440.)19 Furthermore, if a probationer invokes the 

privilege in response to questions that pose no threat of self-incrimination (e.g., questions 

concerning his probationary status), the state may revoke probation without violating the 

Fifth Amendment. (Id. at p. 435, fn. 7.) In light of these allowances, there is no 

overwhelming need for a compelled waiver of defendant’s fundamental right to his 

privilege against self-incrimination.

Arguably, a waiver of the privilege against self-incrimination could also serve the 

secondary purposes of treatment and rehabilitation by encouraging a probationer to reveal 

and discuss mental dysfunctions with the psychotherapist. However, for these purposes, 

the state has another option: it can compel a probationer to disclose incriminating 

information, even after invocation of the Fifth Amendment, by granting him immunity. 

Indeed, doing so would greatly encourage the probationer to engage with the 

psychotherapist by ensuring that any facts revealed would not lead to imprisonment.20 

By contrast, a waiver explicitly allowing a probationer’s statements to be used against the 

 

18 The First District Court of Appeal has also held that an in-custody, unMirandized probationer’s statements may be used against him in a revocation proceeding.

(People v. Racklin (2011) 195 Cal.App.4th 872, 881.) 

19 See also People v. Macias (1997) 16 Cal.4th 739, 757 [trial court properly 

allowed impeachment with statements defendant voluntarily made to probation officer in 

preparation for fitness hearing]; People v. Goodner (1992) 7 Cal.App.4th 1324, 1332

[statements to probation officer could be used to prove elements of prior conviction for 

sentence enhancement purposes].)

20 Under use and derivative use immunity, the state could still prosecute the 

probationer for offenses revealed to a psychotherapist, provided the prosecution is based 

solely on independently obtained evidence.
26

probationer in a subsequent criminal prosecution may tend to discourage honesty and 

openness between the probationer and the psychotherapist.

For the reasons above, we conclude the Fifth Amendment prohibits the section 

1203.067, subdivision (b)(3) requirement of a waiver of the privilege against selfincrimination as a condition of probation. (Accord State v. Eccles, supra, 179 Ariz. 226.)

The Attorney General, anticipating we might find the waiver overbroad, proposes

two modifications to narrow it. One proposed modification would limit the subject 

matter of questions that could be posed to those “in furtherance of the defendant’s 

successful completion of the sex offender management program, his/her current 

probation supervision period, his/her sexual history, and state-mandated assessments of 

his/her risk of reoffending.” But the probation condition is mandated by statute. It is not 

the proper role of this court to fashion modifications that have no basis in the plain 

language of the statute; these are questions better left to the Legislature.

A second proposed modification would provide that “any answer that the 

defendant provides after invoking his/her Fifth Amendment privilege will not be used in 

any future prosecution or violation of probation as long as it is solely based on a new 

criminal offense which occurred prior to the conviction of the current offense.” Thus the 

Attorney General invites us to incorporate an automatic immunity provision for past 

offenses. Presumably, then, a prosecutor could use the probationer’s statements against 

him in a criminal prosecution of any ongoing or future offense.

But an automatic grant of immunity could create unanticipated difficulties in a 

prosecution for past offenses, thereby harming efforts to protect public safety. Suppose a 

probationer, after being required to waive the privilege against self-incrimination, then 

reveals a history of numerous past serious and violent offenses for which he has been 

granted immunity automatically under the Attorney General’s proposed rule. Any 

prosecution for such offenses—even if the prosecutor never intended for the defendant to 

be questioned about them—could be substantially compromised. “[A] defendant against 
27

whom incriminating evidence has been obtained through a grant of immunity may be in a 

stronger position at trial than a defendant who asserts a Fifth Amendment coercedconfession claim. One raising a claim under this [immunity] statute need only show that 

he testified under a grant of immunity in order to shift to the government the heavy 

burden of proving that all of the evidence it proposes to use was derived from legitimate 

independent sources.” (Kastigar, supra, 406 U.S. at pp. 461-462.) In many such cases, 

public safety may be better served where a prosecutor retains the discretion whether to 

grant immunity. It would thus be unwise for this court to construe the statute as allowing

an automatic immunity mechanism for past offenses, as suggested by the Attorney 

General.

Mindful of these complications, we do not here opine on the effect, on future or 

independent prosecutions, of compelling defendant’s statements as part of the sex 

offender management program in the absence of the waiver. “The issue before us [. . .] 

does not directly implicate the latter problem.” (Spielbauer, supra, 45 Cal.4th at p. 728.)

We hold only that the state may not require the waiver of “any privilege against selfincrimination” as a condition of probation as set forth in section 1203.067, subdivision 

(b)(3).

5. The Dissent and People v. Garcia

The dissent would adopt a different construction of the waiver and uphold it as 

constitutional, as did a majority of a separate panel of this court in People v. Garcia

(March 21, 2014, H039603) [2014 WL 1116998] (Garcia). Under this interpretation, the 

condition would allow the state to require the probationer to answer questions as part of 

the sex offender management program and polygraph examinations, but the state would 

be prohibited from using those statements against the probationer in a separate criminal 

prosecution. 

We would agree that it is reasonable to construe the waiver as applying only to 

statements the probationer makes in the course of the sex offender management program 
28

and polygraph examinations.

21

 But even limited to that context, the statute still requires a 

“waiver of any privilege against self-incrimination” as to those statements. (§ 1203.067, 

subd. (b)(3).) Basic statutory construction requires us to interpret the phrase “any 

privilege against self-incrimination” in accord with the well-established definition of that 

privilege as set forth in Fifth Amendment jurisprudence. “[W]hen a word used in a 

statute has a well-established legal meaning, it will be given that meaning in construing 

the statute. This has long been the law of California: ‘The rule of construction of statutes 

is plain. Where they make use of words and phrases of a well-known and definite sense 

in the law, they are to be received and expounded in the same sense in the statute.’ ” 

(Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 19 [quoting Harris v. Reynolds (1859) 13 Cal. 

514, 518].) Without a doubt, the privilege against self-incrimination is well-established

and definite under the Fifth Amendment. Thus, the plain language of the statute 

unambiguously includes any waiver of the probationer’s rights under the SelfIncrimination Clause.

Furthermore, as set forth above, the “core” right of the Self-Incrimination Clause 

protects against the use of compelled statements in a criminal proceeding against the 

speaker. (Chavez, supra, 538 U.S. at pp. 766-773 (plur. opn. of Thomas, J.); Maldonado, 

supra, 53 Cal.4th at p. 1128.) Any condition excluding the core of the waived right from 

the waiver would require some indication of that exclusion in its language. No such 

language is found in the waiver condition here, explicit or implicit. To the contrary, the 

statute’s use of the word “any” explicitly defines the waiver to include all aspects of the 

privilege; this necessarily includes the core right. 

 

21 The dissent reads our opinion as considering a broader construction of the 

waiver that would apply it to any statement by the probationer, whether or not it is made 

in the context of the sex offender management program or polygraph exams. We address 

the narrower construction—applying the waiver only to statements made during that 

context—above at pages 21-23. We conclude the waiver is unconstitutional under either 

construction.
29

Both the dissent and the majority in Garcia conclude that the Legislature intended 

only to require probationers to participate fully in the sex offender management program, 

and not to allow their statements to be used against them in separate criminal 

proceedings.22 But the most reliable indicator of legislative intent is the plain language of 

the statute. (Fitch v. Select Products Co. (2005) 36 Cal.4th 812, 818.) When “the 

statute’s text evinces an unmistakable plain meaning, we need go no further.” (Beal 

Bank, SSB v. Arter & Hadden, LLP (2007) 42 Cal.4th 503, 508.) The plain language of 

the statute does not support the construction advanced by the dissent and by the majority 

in Garcia. Moreover, that construction would render the waiver unnecessary. As the 

United States Supreme Court made clear, the Fifth Amendment already allows the state 

to require probationers to answer questions as a condition of probation, provided those 

statements are not used against the probationer in a criminal prosecution. (Murphy,

supra, 465 U.S. at p. 427.) “[I]t is well established that incriminating answers may be 

officially compelled, without violating the privilege, when the person to be examined 

receives immunity ‘coextensive with the scope of the privilege’—i.e., immunity against 

both direct and ‘derivative’ criminal use of the statements.” (Spielbauer, supra, 

45 Cal.4th at pp. 714-715.)

The dissent construes the statute as limited to requiring a waiver of the right to 

refuse to answer questions during polygraph examinations and any other part of the sex 

offender management program. And the Garcia majority views the waiver provision as 

“critical” because it prevents a probationer from refusing to answer questions on selfincrimination grounds. (Garcia, supra, at pp. 5, 17.) But the privilege against selfincrimination does not prohibit the State from compelling statements, provided the 

 

22 Other language in the statute already requires probationers to “participate in” 

and “successfully complete” the sex offender management program, requiring them to 

engage in treatment and participate in polygraph exams. (§ 1203.067, subds. (b)(1), 

(b)(2) & (b)(3).)
30

probationer retains immunity. Neither the dissent nor the Garcia majority explain the 

necessity of requiring a waiver when the probationer can already be compelled to answer 

questions, as described in Speilbauer. Such a construction violates the basic rule that no 

part of a statute shall be construed to be “ ‘inoperative or superfluous, void or 

insignificant.’ ” (AFL-CIO v. Deukmejian (1989) 212 Cal.App.3d 425, 435 [quoting 2A 

Sutherland, Statutory Construction (4th ed. 1984) § 46.06, p. 104].) We are mindful of 

the rule that courts should construe statutes, “when reasonable, to avoid difficult 

constitutional questions.” (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1105.) (Italics 

added.) But that principle does not allow us to adopt a construction that controverts the 

plain language of the statute.

Finally, the statutory construction advanced by the dissent and by the majority in 

Garcia raises two additional concerns. First, no reasonable defendant can be expected to 

understand that a “waiver of any privilege against self-incrimination” does not actually 

mean what it says, but instead means that after waiving the privilege, he or she could 

nonetheless invoke it at a later time with respect to statements made under the waiver. 

When “men [or women] of common intelligence must necessarily guess” at a condition’s 

meaning and “differ as to its application,” such a condition is vague in violation of due 

process. (Connally v. General Const. Co. (1926) 269 U.S. 385, 391.) Upholding the 

waiver condition as worded would cause confusion in the law and in the proper 

administration of defendant’s probation. And second, as Garcia acknowledges, the effect 

of the waiver requirement is to grant the probationer automatic use and derivative use 

immunity for any incriminating statements.23 (Garcia, supra, at p. 15.) While the 

 

23 In contrast, by striking the waiver requirement, our holding removes the 

probationer’s statements from the “classic penalty situation” recognized by Murphy,

supra, 465 U.S. at page 435. Thus, unless the probationer explicitly invokes the Fifth 

Amendment, his statements may be used in a criminal prosecution, as Murphy’s 

statements were used against him.
31

Garcia majority downplays the significance of this result, we think it unnecessarily 

threatens to hamper future prosecutions. This is not a situation where “the vast majority 

of such cases are unlikely to have criminal implications.” (Spielbauer, supra, 45 Cal.4th 

at p. 729.) To the contrary, under the CASOMB standards, polygraph examiners are 

specifically directed to question probationers—who have already been convicted of at 

least one offense—about a wide array of other criminal behaviors. And as mandatory 

reporters, both the polygraph examiners and probation officers may have reporting 

obligations to law enforcement. There is no disagreement that compelled statements 

cannot be used in separate criminal proceedings; therefore, prosecutors wishing to pursue 

charges for these offenses will be required to disprove any taint.

C. Overbreadth of the Polygraph Examinations Requirement

Defendant, relying on Brown, supra, 101 Cal.App.4th 313, challenges as 

overbroad the condition requiring him to participate in polygraph examinations as part of 

the sex offender management program. The defendant in Brown was convicted of 

stalking. The trial court imposed a probation condition identical to the condition here, 

ordering Brown to complete a stalking therapy program and submit to periodic polygraph 

examinations as conditions of his probation. (Id. at pp. 317, 319.) The court of appeal 

held that mandatory polygraph testing as a condition of probation was reasonably related 

to the defendant’s stalking conviction and to possible future criminality under People v. 

Lent (1975) 15 Cal.3d 481. (Brown, supra, 101 Cal.App.4th at p. 319.) But the court 

further held that the probation condition must be narrowed under Lent “to limit the 

questions allowed to those relating to the successful completion of the stalking therapy 

program and the crime of which Brown was convicted.” (Id. at p. 321.) 

Application of the Lent factors here leads us to the same conclusion. Under Lent, 

“A condition of probation will not be held invalid unless it ‘(1) has no relationship to the 

crime of which the offender was convicted, (2) relates to conduct which is not in itself 

criminal, and (3) requires or forbids conduct which is not reasonably related to future 
32

criminality. . . .’ [Citation.] Conversely, a condition of probation which requires or 

forbids conduct which is not itself criminal is valid if that conduct is reasonably related to 

the crime of which the defendant was convicted or to future criminality.” (People v. 

Lent, supra, 15 Cal.3d at p. 486, fn. omitted.) Here, the basic requirement that Friday 

participate in polygraph examinations does not run afoul of the Lent factors, provided the 

questions posed to him are reasonably related to his successful completion of the sex 

offender management program, the crime of which he was convicted, or related criminal 

behavior, whether past or future. The CASOMB regulations provide examples of many 

such questions. For example, questions about the probationer’s sexual pre-occupations or 

history of sexual deviancy would be reasonably related to future criminality and the 

circumstances of the underlying offense.

However, neither the language of the probation condition nor the CASOMB 

regulations place any limits on the types of questions that may be posed to the 

probationer. There is no requirement that the questions be related to any criminal 

conduct, whether past, present, or future. Nor is there any requirement that the questions 

be limited to successful completion of the sex offender management program. Under the 

probation condition imposed here, a polygraph examiner could ask Friday anything at all, 

without limitation. For example, a polygraph examiner could question Friday about his 

medical history or personal financial matters having nothing to do with any criminal 

conduct. Such questions would have no reasonable connection to the crime for which he 

was convicted, no bearing on his completion of the treatment program, and no relevance 

to future criminality. Under the Lent factors, allowing such questions would clearly 

violate overbreadth principles.

Because the language of subdivision (b)(3) mandates that participation in 

polygraph examinations “shall be part of the sex offender management program,” we will 

construe this latter condition as imposing the limitations required under Lent and Brown. 

Specifically, we construe the requirement of participation in polygraph examinations as 
33

allowing only questions relating to the successful completion of the sex offender 

management program, the crime of which defendant was convicted, or related criminal 

behavior. So construed, we uphold this probation condition as sufficiently narrow to 

satisfy the overbreadth requirements of Lent.

D. Waiver of the Psychotherapist-Patient Privilege

Section 1203.067, subdivision (b)(4) requires any defendant granted probation 

under the statute to enter a “Waiver of any psychotherapist-patient privilege to enable 

communication between the sex offender management professional and supervising 

probation officer, pursuant to Section 290.09.” Defendant contends this condition is 

overbroad in violation of his constitutional right to privacy. We hold that the waiver is 

constitutional provided it is narrowly construed to require waiver only insofar as 

necessary “to enable communication between the sex offender management professional 

and supervising probation officer, pursuant to Section 290.09.” 

1. Forfeiture of the Claim

We first consider whether defendant has forfeited this claim by failing to object in 

the court below. “Ordinarily, a criminal defendant who does not challenge an assertedly 

erroneous ruling of the trial court in that court has forfeited his or her right to raise the 

claim on appeal.” (In re Sheena K., supra, 40 Cal.4th at p. 880.) “Applying the rule to 

appellate claims involving discretionary sentencing choices or unreasonable probation 

conditions is appropriate, because characteristically the trial court is in a considerably 

better position than the Court of Appeal to review and modify a sentence option or 

probation condition that is premised upon the facts and circumstances of the individual 

case.” (Id. at p. 885.) However, an appellate claim amounting to a “facial challenge” 

that phrasing or language of a probation condition is unconstitutionally overbroad “does 

not require scrutiny of individual facts and circumstances but instead requires the review 

of abstract and generalized legal concepts—a task that is well suited to the role of an 

appellate court.” (Ibid.) A challenge to the condition as unconstitutionally overbroad 
34

thereby “presents an asserted error that is a pure question of law, easily remediable on 

appeal by modification of the condition.” (Id. at p. 888.) Defendant’s claim here—a 

purely facial challenge to the language of the condition as required under the statute—

constitutes such a claim. We conclude defendant has not forfeited his claim.

2. The Psychotherapist-Patient Privilege

The California Supreme Court has recognized that communications between a 

patient and psychotherapist are protected by a psychotherapist-patient privilege based on 

the federal constitutional right to privacy. “The psychotherapist-patient privilege has 

been recognized as an aspect of the patient’s constitutional right to privacy.” (People v. 

Stritzinger (1983) 34 Cal.3d 505, 511 (Stritzinger).) “We believe that a patient’s interest 

in keeping such confidential revelations from public purview, in retaining this substantial 

privacy, has deeper roots than the California statute and draws sustenance from our 

constitutional heritage. In Griswold v. Connecticut [(1965)] 381 U.S. 479, 484, the 

United States Supreme Court declared that ‘Various guarantees [of the Bill of Rights] 

create zones of privacy,’ and we believe that the confidentiality of the psychotherapeutic 

session falls within one such zone.” (In re Lifschutz (1970) 2 Cal.3d 415, 431-432 

(Lifschutz).)

More recently, the California Supreme Court has questioned the continuing 

vitality of the constitutional bases for the psychotherapist-patient privilege. “Although 

over 40 years have elapsed since our decision in Lifschutz, the United States Supreme 

Court itself has not yet definitively determined whether the federal Constitution embodies 

even a general right of informational privacy.” (People v. Gonzales (2013) 

56 Cal.4th 353, 384 (Gonzales).) Following the lead of the United States Supreme Court 

in Whalen v. Roe (1977) 429 U.S. 589 and NASA v. Nelson (2011) ___ U.S. ___

[131 S.Ct. 746], our high court in Gonzales merely assumed, without deciding, that such 

a right exists. (Gonzales, supra, 56 Cal.4th at p. 385.) Regardless of the analytic 

approach taken by these courts, no court has yet overruled the holdings of Lifschutz and 
35

Stritzinger. We remain bound by them. (Auto Equity Sales, Inc. v. Superior Court of 

Santa Clara County (1962) 57 Cal.2d 450, 455.) Accordingly, we will proceed under the 

assumption that defendant enjoys the right to a psychotherapist-patient privilege based on 

his federal constitutional privacy rights.

“It is also well established, however, that the right to privacy is not absolute, but 

may yield in the furtherance of compelling state interests.” (Stritzinger, supra, 34 Cal.3d 

at p. 511.) In Stritzinger, the court began by considering the state’s “competing interest” 

in creating an exception to the privilege. (Ibid.) The court reaffirmed the holding of 

Lifschutz that any such exception must be narrowly construed, ibid., “concomitant with 

the purposes of the exception.” (Lifschutz, supra, 2 Cal.3d at p. 435.) These principles 

resemble the tailoring analysis in which a court considers whether a probation condition 

imposing limitations on a person’s constitutional rights is closely tailored to the purpose 

of the condition. (In re Sheena K., supra, 40 Cal.4th at p. 890.)

In Gonzales, supra, 56 Cal.4th 353, the California Supreme Court recently 

considered the psychotherapist-patient privilege in the context of a proceeding under the 

Sexually Violent Predator Act (SVPA). The defendant, Ramiro Gonzales, had been 

convicted of multiple sex offenses over a 20-year period. (Id. at p. 358.) Gonzales was 

paroled in 2004 and he underwent psychological evaluation and treatment as a condition 

of parole. (Id. at p. 359.) After violating his parole conditions several times—including 

one incident in which he visited a children’s playground—Gonzales was arrested and 

taken into custody. (Id. at pp. 359-360.) In 2006, the prosecution petitioned to commit 

Gonzales under the SVPA, and the matter was set for a jury trial. 

Before trial, the prosecution sought to subpoena psychological records arising out 

of Gonzales’ psychological treatment as a parolee. (Gonzales, supra, 56 Cal.4th at 

p. 361.) Gonzales moved to quash the subpoena on the basis the records were protected

under the psychotherapist-patient privilege, partly relying on Story v. Superior Court

(2003) 109 Cal.App.4th 1007 (Story) [psychotherapy records relating to therapy sessions 
36

engaged in as a condition of probation were protected by the statutory psychotherapistpatient privilege and could not be obtained by a prosecutor who sought the records for 

use in a subsequent murder prosecution].) The California Supreme Court distinguished 

between Gonzales’ statutory claim under Story and his claim under the federal 

constitutional right to privacy. “[W]e believe that in order to properly distinguish the 

federal constitutional issue from the state law issue, it is necessary, in determining 

whether the disclosure of defendant’s therapy records and the admission of his therapist’s 

testimony violated a federal constitutional right of privacy, to look to the specific nature 

and extent of the federal constitutional privacy interests that are actually implicated in 

this particular setting and to the permissible state law interests that would support the 

disclosure and admission of testimony in question in such a setting.” (Gonzales, supra,

56 Cal.4th at p. 386.)

In this analysis, the court first noted that the constitutional privacy right invoked 

by Gonzales arose under the conditions of parole, and under the care of a psychotherapist 

funded by the state. (Gonzales, supra, 56 Cal.4th at p. 386.) The court then observed 

that “the federal Constitution grants states considerable leeway to impose very substantial 

limitations on the right of privacy retained by persons who are released on parole,” citing 

Samson v. California (2006) 547 U.S. 843 (federal Constitution does not preclude a state 

from authorizing a search of a parolee at any time or place even in the absence of 

reasonable suspicion). Balanced against this “limited intrusion” of the privacy right at 

issue, the court held “the state has a particularly strong and legitimate interest in 

authorizing the disclosure and use of a parolee’s prior statements that occur in parolemandated therapy in a subsequent SVPA proceeding, especially when, as here, the 

parole-mandated therapy was occasioned by the parolee’s prior conviction of a sex 

offense.” (Gonzales, supra, 56 Cal.4th at pp. 387-388.) The court held disclosure was 

therefore supported by “a legitimate and substantial state interest,” such that Gonzales’ 
37

federal constitutional right to the psychotherapist-patient privilege was not violated by 

the release of his psychological records. (Id. at p. 388.)

3. Application to the Waiver Under Section 1203.067, Subdivision (b)(4)

Consistent with the above principles, we consider the purpose of the waiver of the 

psychotherapist-patient privilege at issue here and the state’s interest in compelling 

disclosure under it. Unlike the language of subdivision (b)(3), which mandates waiver of 

any privilege against self-incrimination, the wording of subdivision (b)(4) explicitly sets 

forth the purposes of the waiver of the psychotherapist-patient privilege: “to enable 

communication between the sex offender management professional and supervising 

probation officer, pursuant to Section 290.09.” Section 290.09, in turn, requires 

communication between the sex offender management professional and the probation 

officer for two purposes. First, the sex offender management professional must provide 

the supervising probation officer with the probationer’s scores on the SARATSO risk 

assessment tools. (§ 290.09, subd. (b)(2).) Second, the sex offender management 

professional must communicate with the probation officer about the probationer’s 

“progress in the program and dynamic risk assessment issues.” (§ 290.09, subd. (c).) By 

these provisions, the purposes of the psychotherapist-patient privilege waiver are 

expressly limited and comparatively well defined.

We find that the state’s interest in furthering such communication is legitimate and 

substantial. The overriding goal of the Containment Model approach underlying the sex 

offender management program is public safety and the reduction of recidivism. The 

functioning of the model hinges in large part on open communication between the 

probation officer and the psychotherapist. (Cal. Sex Offender Management Bd., Sex 

Offender Treatment Program Certification Requirements, supra, at pp. 6-8.) 

Furthermore, probationers, like the parolee in Gonzales, are inherently subject to a 

greater degree of intrusion on their rights of privacy. (United States v. Knights, supra,
38

534 U.S. at p. 119.) Accordingly, we conclude the state has a sufficiently substantial 

interest in communication between these participants to justify disclosure here.

We next consider whether the scope of the waiver is properly tailored to this 

interest, or whether the waiver must be more narrowly construed concomitant with the 

purposes of the exception. (Stritzinger, supra, 34 Cal.3d at p. 511; Lifschutz, supra,

2 Cal.3d at p. 435; In re Sheena K., supra, 40 Cal.4th at p. 890.) Similar to the broad 

language used in the waiver of the privilege against self-incrimination, the language of 

the statute, read literally, requires the waiver of “any psychotherapist-patient privilege,” 

regardless of the subject matter of the communication or the level of risk to public safety 

absent disclosure. The waiver does not distinguish between comparatively more 

dangerous or less dangerous probationers. But unlike the language of the waiver of the 

privilege against self-incrimination, this broad language is followed by the phrase “to 

enable communication between the sex offender management professional and 

supervising probation officer, pursuant to Section 290.09.” This additional language 

limits what may be done with the probationer’s communications once they are revealed.

We will therefore narrowly construe the statute as requiring a waiver of the 

psychotherapist-patient privilege only insofar as it is necessary “to enable communication 

between the sex offender management professional and supervising probation 

officer . . . .” (§ 1203.067, subd. (b)(4).) Specifically, we hold that defendant may

constitutionally be required to waive the psychotherapist-patient privilege only to the 

extent necessary to allow the sex offender management professional to communicate with 

the supervising probation officer. Furthermore, the supervising probation officer may 

communicate defendant’s scores on the SARATSO risk assessment tools to the 

Department of Justice to be made accessible to law enforcement as required under section 

290.09, subdivision (b)(2). This narrow interpretation of the statute allows the 

psychotherapist to communicate with the probation officer as necessary, furthering the 

purposes of the exception as set forth in the statute. Apart from these exceptions, neither 
39

the psychotherapist nor the probation officer may relay protected communications to 

some other third party under the waiver, and defendant’s privacy rights based on the

psychotherapist-patient privilege otherwise remain intact.

The parties invite us to create various limitations on the subject matter of the 

communications that should come under the waiver. The Attorney General argues we 

should limit the waiver to communications “related to the furtherance of the defendant’s 

successful completion of the sex offender management program, his/her current 

probation supervision period, his/her sexual history, and state-mandated assessments of 

his/her risk of reoffending.” Defendant argues we should limit the waiver to “subjects 

necessary for rehabilitation.” We decline to impose such limits because it is unclear 

exactly what statements would be waived under such standards, rendering the probation 

condition too vague for notice purposes. (Connally v. General Construction Co., supra,

269 U.S. 385, 391 [a statute that either forbids or requires the doing of an act in terms so 

vague that men of common intelligence must necessarily guess at its meaning and differ 

as to its application, violates due process of law].) Arguably, the type of mandated 

communication as set forth in section 290.09—e.g., communication about probationer’s 

“progress in the program and dynamic risk assessment issues”—implies such limits on 

the subject matter of communications that may come under the waiver. But absent a 

specific assertion about a given statement made by the probationer under specific factual 

circumstances, it would be premature and speculative for this court to impose further 

limits.

Defendant relies on Story, supra, 109 Cal.App.4th 1007, In re Pedro M. (2000) 

81 Cal.App.4th 550 (disapproved in Gonzales, supra, 56 Cal.4th 353), and In re Corona

(2008) 160 Cal.App.4th 315. Those cases concerned a defendant’s statutory right to a 

psychotherapist-patient privilege under Evidence Code sections 1012 and 1014. 

Consistent with the California Supreme Court’s analysis in Gonzales, supra, 56 Cal.4th at 
40

page 386, we find defendant’s reliance on these cases unavailing with respect to his 

federal constitutional claim.24

E. Scienter Requirements

Defendant contends three of the probation conditions are unconstitutionally vague 

absent a scienter requirement. As to the condition that he not purchase or possess any 

pornographic or sexually explicit material as it relates to minors, he argues it is 

unconstitutionally vague because he could unknowingly be in possession of such 

material. Similarly, as to the condition that he not possess or use any data encryption 

technique program, he contends it is invalid because he could unknowingly use or be in 

possession of such a program. As to the condition that he not frequent, be employed by, 

or engage in any business where pornographic materials are openly exhibited, he 

contends it requires a knowledge element because he may unwittingly enter an 

establishment without knowing pornographic materials are exhibited there. Defendant 

also challenges the use of the term “frequent” in this last condition as being 

unconstitutionally vague.

Defendant only objected to the first of these three probation conditions in the trial 

court. Nonetheless, we will consider the merits of his claims as to all three conditions. 

These claims are facial challenges concerning pure issues of law, and as such, they are 

not forfeited by the failure to object below. (In re Sheena K., supra, 40 Cal.4th at 

p. 889.)

Regarding the first condition, defendant argues that he may unknowingly come 

into possession of pornographic or sexually explicit material as it relates to minors. To 

be constitutionally adequate, he argues, the probation condition must be modified to 

 

24 We understand defendant’s claim regarding the psychotherapist-patient 

privilege as relying solely on federal constitutional grounds. Although he cites to cases 

concerning the statutory basis for the privilege, he does not cite to or rely on relevant 

statutory authority for the psychotherapist-patient privilege in his briefs.
41

prohibit only knowing possession or purchase of pornography or sexually explicit 

material as it relates to minors. We agree. 

“[T]he underpinning of a vagueness challenge is the due process concept of ‘fair 

warning.’ ” (In re Sheena K., supra, 40 Cal.4th at p. 890.) “A probation condition ‘must 

be sufficiently precise for the probationer to know what is required of him, and for the 

court to determine whether the condition has been violated,’ if it is to withstand a 

challenge on the ground of vagueness.” (Ibid.) That is, the defendant must know in 

advance when he may be in violation of the condition. “[T]he law has no legitimate 

interest in punishing an innocent citizen who has no knowledge of the presence of a 

[prohibited item].” (People v. Freitas (2009) 179 Cal.App.4th 747, 752 [modifying 

probation condition to prohibit knowing possession of a firearm or ammunition].) 

Accordingly, courts have consistently ordered modification of probation conditions to 

incorporate a scienter requirement where a probationer could unknowingly engage in the 

prohibited activity. (In re Victor L. (2010) 182 Cal.App.4th 902, 912-913 [modifying 

probation condition to prohibit knowing presence of weapons or ammunition]; In re 

Justin S. (2001) 93 Cal.App.4th 811, 816 [modifying prohibition on association with 

gang members to prohibit association with known gang members]; In re Kacy S. (1998) 

68 Cal.App.4th 704, 713 [modifying probation condition that defendant not associate 

with any persons not approved by his probation officer]; People v. Lopez (1998) 

66 Cal.App.4th 615, 629 [modifying probation on displaying gang-related indicia].)

It is possible that defendant could come into possession of prohibited material 

without knowing it. For example, another person could leave pornographic or sexually 

explicit material relating to minors in defendant’s car or house without his knowledge. 

Or he could pick up a book or a magazine without knowing it contains prohibited 

material. To enforce a probation violation for unknowing possession of the prohibited 

materials would violate the principles above. Therefore, we will modify this probation 
42

condition to prohibit knowing possession or purchase of pornographic or sexually explicit 

material as it relates to minors.

Similarly, it is possible defendant could unknowingly use or possess a data 

encryption technique program. Indeed, given that data encryption is ubiquitous in 

modern computer technology, it is likely that he would. Accordingly, we will modify 

this probation condition to prohibit knowing use or possession of a data encryption 

technique program.

Finally, we consider the condition that defendant not frequent, be employed by, or 

engage in any business where pornographic materials are openly exhibited. Defendant 

argues the condition should be modified to prohibit “visit[ing] or remain[ing] in any 

business where you know or which your probation officer informs you is a place where 

pornographic materials are openly exhibited.” We agree with defendant that the term 

“frequent” is unconstitutionally vague, as this court has previously held. (People v. Leon

(2010) 181 Cal.App.4th 943, 952 (Leon) [term “frequent” is unconstitutionally vague]; In 

re H.C. (2009) 175 Cal.App.4th 1067, 1072 [term “frequent” is obscure and susceptible 

to multiple meanings].) Consistent with this court’s modification of the term in Leon, we 

substitute the phrase “visit or remain in” for the term “frequent.” Furthermore, because 

defendant could unknowingly visit a business where prohibited materials are openly 

exhibited, we will incorporate a scienter requirement into the condition.

III. DISPOSITION

In light of our holding that the waiver requirement in Penal Code section 

1203.067, subdivision (b)(3) is unconstitutional, we strike the language “waive any 

privilege against self-incrimination and” from the probation condition implementing that 

subdivision. Defendant’s probation conditions are further modified as follows: (1) the 

condition prohibiting possession or purchase of pornographic or sexually explicit material 

as it relates to minors is modified to prohibit knowing possession or purchase of 

pornographic or sexually explicit material as it relates to minors; (2) the condition 
43

prohibiting use or possession of a data encryption technique program is modified to 

prohibit knowing use or possession of a data encryption technique program; and (3) the 

condition that defendant not frequent, be employed by, or engage in any business where 

pornographic materials are openly exhibited is modified to prohibit visiting, remaining in, 

being employed by, or engaging in any business where defendant knows that 

pornographic materials are openly exhibited. As modified, the judgment is affirmed.

_________________________

MÁRQUEZ, J.

I CONCUR:

_________________________

GROVER, J.
BAMATTRE-MANOUKIAN, J., Concurring and Dissenting

I. INTRODUCTION

Defendant Jeffrey David Allen Friday pleaded no contest to possession of matter 

depicting a person under 18 years of age personally engaging in or simulating sexual 

conduct. (Pen. Code, § 311.11, subd. (a).)1

At the sentencing hearing held on February 25, 2013, defendant was placed on 

probation for three years, ordered to serve six months in jail, and required to register as a 

sex offender. (See § 290, subd. (c).) The trial court also imposed a number of probation 

conditions as required by section 1203.067, subdivision (b). Defendant was ordered to 

successfully “complete an approved sex offender management program, following the 

standards developed pursuant to Section 9003.” (See § 1203.067, subd. (b)(2).) 

Defendant was required to “waive any privilege against self-incrimination and participate 

in polygraph examinations, which shall be part of the sex offender management 

program.” (See § 1203.067, subd. (b)(3).) Defendant was required to “waive any 

psychotherapist-patient privilege to enable communication between the sex offender 

management professional and the Probation Officer, pursuant to . . . Section 290.09.” 

(See § 1203.067, subd. (b)(4).)

Defendant now challenges the probation conditions imposed pursuant to 

section 1203.067, subdivisions (b)(3) and (b)(4). He contends both probation conditions 

are overbroad, and he contends the probation condition requiring him to waive the 

privilege against self-incrimination conflicts with the Fifth Amendment to the United 

States Constitution.2

 

1 Unspecified section references are to the Penal Code.

2

The Fifth Amendment provides that no person “shall be compelled in any 

criminal case to be a witness against himself.” (See also Cal. Const., art. I, § 15

[“Persons may not . . . be compelled in a criminal cause to be a witness against 

themselves . . . .”].)
2

I agree with the majority that the probation condition imposed pursuant to 

section 1203.067, subdivision (b)(4), which requires a waiver of the psychotherapistpatient privilege, is not overbroad and does not require modification.

I also agree with the majority that the section 1203.067, subdivision (b)(3) 

probation condition is not overbroad insofar as it requires defendant to “participate in 

polygraph examinations” as part of the sex offender management program. However, I 

respectfully disagree with the majority’s conclusion that the language “waive any 

privilege against self-incrimination” must be stricken from the probation condition 

required by section 1203.067, subdivision (b)(3). As explained below, I respectfully 

disagree with the majority that the probation condition, as written, violates the Fifth 

Amendment and is overbroad.

The trial court also imposed other conditions of probation that defendant 

challenges as overbroad. Specifically, defendant challenges the probation conditions 

requiring him not to (1) “purchase or possess any pornographic or sexually explicit 

material as defined by [the] probation officer as it relates to minors,” (2) “frequent, be 

employed by, or engage in any business where pornographic materials are open[ly] 

exhibited,” and (3) “possess or use any data encryption technique program.” The 

majority opinion holds that these three conditions must be modified to include a 

knowledge element, and that the second condition must be modified to replace the word 

“frequent” with the phrase “visit or remain in.” I concur in that portion of the majority 

opinion.

II. DISCUSSION

A. Statutory Background

In the Sex Offender Punishment, Control, and Containment Act of 2006 

(§ 290.03), the “Legislature [found] and declare[d] that a comprehensive system of risk 

assessment, supervision, monitoring and containment for registered sex offenders 
3

residing in California communities is necessary to enhance public safety and reduce the 

risk of recidivism posed by [sex] offenders.” (§ 290.03, subd. (a).)

In 2010, the Legislature amended section 1203.067, subdivision (b) as part of a 

bill aimed at expanding the “Containment Model” approach to sex offender risk 

management. (Stats. 2010, ch. 219, § 17, eff. Sept. 9, 2010; see Sen. Com. on Public 

Safety, Bill Analysis of Assem. Bill No. 1844 (2009-2010 Reg. Sess.) June 29, 2010.) 

“The Containment Model calls for a collaborative effort of sex offender specific 

treatment providers, law enforcement supervising agents such as probation officers or 

parole agents, polygraphists providing specialized testing as both a treatment and 

monitoring tool and victim advocacy participants whenever possible. The offender is 

supervised and overseen within this context.” (Sen. Com. on Public Safety, Bill Analysis 

of Assem. Bill No. 1844 (2009-2010 Reg. Sess.) June 29, 2010.)

As amended, section 1203.067, subdivision (b) requires that sex offenders 

participate in a sex offender management program as a condition of probation. The 

statute requires that such probationers waive “any privilege against self-incrimination and 

participat[e] in polygraph examinations, which shall be part of the sex offender 

management program.” (§ 1203.067, subd. (b)(3).) Additionally, such probationers must 

waive “any psychotherapist-patient privilege to enable communication between the sex 

offender management professional and supervising probation officer, pursuant to 

Section 290.09.” (§ 1203.067, subd. (b)(4).) The new requirements apply to persons 

placed on probation for certain sex offenses “[o]n or after July 1, 2012.” (§ 1203.067, 

subd. (b).) The legislative history of these “specified conditions of supervised probation” 

notes that “[v]arious studies on the effectiveness of containment models in other states 

ha[d] shown positive results in recidivism reduction.” (Sen. Appropriations Com., Bill 

Analysis of Assem. Bill No. 1844 (2009-2010 Reg. Sess.) Aug. 12, 2010.)
4

B. Section 1203.067, Subdivision (b)(3) Probation Condition

As a condition of probation, defendant was required to “waive any privilege 

against self-incrimination and participate in polygraph examinations, which shall be part 

of the sex offender management program.” (See § 1203.067, subd. (b)(3).)

Defendant argues that this probation condition conflicts with the Fifth Amendment 

and is overbroad, because it prohibits him from invoking the privilege against selfincrimination. In his briefing, defendant contended that the condition should be modified 

to specify that he is “required to cooperate with the sex offender management program to 

the extent it does not interfere with his Fifth Amendment privilege against selfincrimination.” At oral argument, defendant argued that the language “waive any 

privilege against self-incrimination” should be stricken from the probation condition.

Defendant also argues this condition is overbroad because it “does not limit the 

scope of the questions being asked as part of the polygraph examination to those related 

to the successful completion of the therapy or compliance with the conditions of 

probation . . . .”

The majority agrees with defendant that the probation condition required by 

section 1203.067, subdivision (b)(3) “is prohibited by the Fifth Amendment” insofar as it 

requires him to waive “any privilege against self-incrimination,” but concludes that the 

probation condition is not overbroad with respect to the polygraph testing requirement. 

(Maj. opn. at pp. 1, 9.) The majority orders the language “waive any privilege against 

self-incrimination” stricken from the probation condition. (Maj. opn. at p. 42.)

For the reasons discussed below, I do not believe that the language “waive any 

privilege against self-incrimination” should be stricken from the probation condition 

required by section 1203.067, subdivision (b)(3) or that the probation condition should be 

modified in any other respect.
5

1. Scope of the Waiver of the Privilege Against Self-Incrimination

Both parties in this case appear to believe the waiver of the privilege against selfincrimination required by section 1203.067, subdivision (b)(3) applies only during 

polygraph examinations administered as part of the sex offender management program. 

Defendant construes the condition as requiring him “to answer all questions put to him in 

the course of a polygraph examination which he may not refuse.”

The majority believes that the section 1203.067, subdivision (b)(3) probation 

condition requires defendant to answer questions about any topic, at any time, not just 

questions asked during polygraph examinations or during other aspects of the sex 

offender management program. (See maj. opn. at p. 20.) I understand the majority 

opinion to find that, even if the condition applies only during the course of the sex 

offender management program, defendant still could be asked—and required to answer—

questions that do not relate to the program.

In interpreting the scope of the probation condition mandated by section 1203.067, 

subdivision (b)(3), we must apply settled rules of statutory construction. “ ‘ “The goal of 

statutory construction is to ascertain and effectuate the intent of the Legislature. 

[Citation.] Ordinarily, the words of the statute provide the most reliable indication of 

legislative intent. [Citation.] When the statutory language is ambiguous, the court may 

examine the context in which the language appears, adopting the construction that best 

harmonizes the statute internally and with related statutes. [Citations.]” [Citation.] 

“ ‘When the language is susceptible of more than one reasonable interpretation . . . , we 

look to a variety of extrinsic aids, including the ostensible objects to be achieved, the 

evils to be remedied, the legislative history, public policy, contemporaneous 

administrative construction, and the statutory scheme of which the statute is a part.’ ” 

[Citation.]’ [Citations.]” (People v. Kennedy (2011) 194 Cal.App.4th 1484, 1490-1491 

(Kennedy).) Further, we must construe a statute in a manner that ensures its 
6

constitutionality, if possible. (See People v. Lowery (2011) 52 Cal.4th 419, 427 

(Lowery).)

Here, the plain language of the statute indicates that the waiver of the privilege 

against self-incrimination applies only to statements made in response to questions asked 

as “part of the sex offender management program.” (§ 1203.067, subdivision (b)(3).) 

The compound subject “[w]aiver of any privilege against self-incrimination and 

participation in polygraph examinations” is modified by the phrase “which shall be part 

of the sex offender management program.” (Ibid.) I believe that a waiver of the privilege 

against self-incrimination is thus required only as “part of the sex offender management 

program.” (Ibid.)

In light of the overall statutory scheme and the legislative history of 

section 1203.067, to the extent there is any ambiguity in the language of the statute, I 

would conclude that the Legislature intended to require that probationers waive the 

privilege against self-incrimination only in the context of the sex offender management 

program. Section 1203.067, subdivision (b) applies to probationers who are also required 

to register as sex offenders under section 290, and the Legislature has previously 

recognized that those persons are “ ‘ “ ‘likely to commit similar offenses in the future. 

[Citation.]’ ” ’ ” (People v. Hofsheier (2006) 37 Cal.4th 1185, 1196.) Thus, in enacting 

section 1203.067, subdivision (b), the Legislature recognized that it is appropriate to 

grant probation to a sex offender only if the risks can be managed, and that participation 

in a sex offender management program will help manage those risks. Since the 

Legislature’s intent was to manage the risk of recidivism posed by sex offenders by 

compelling their participation in a sex offender management program, there is no basis 

for construing the statute as mandating a “[w]aiver of any privilege against selfincrimination and participation in polygraph examinations” (§ 1203.067, 

subdivision (b)(3)) as to questions asked for any purpose other than as “part of the sex 

offender management program.”
7

I respectfully disagree with the majority’s determination that “[b]y use of the word 

‘any’ to modify the term ‘privilege,’ the statute precludes all attempts by a probationer, 

present and future, to seek protection under the Self-Incrimination Clause for compelled 

statements made during the sex offender management program, regardless of the 

circumstances in which they may arise.” (Maj. opn. at p. 20.) I believe that by using the 

term “any” to modify the phrase “privilege against self-incrimination” (§ 1203.067, subd. 

(b)(3)), the Legislature simply intended to specify that a probationer could not claim the 

privilege against self-incrimination under any source, such as the Fifth Amendment or 

the state constitution. (See Cal. Const., art. I, § 15; Evid. Code, § 940.) To the extent the 

meaning of the term “any” is ambiguous, this construction of the statute effectuates the 

Legislature’s intent to require that probationers waive the privilege against selfincrimination only in the context of the sex offender management program (see Kennedy, 

supra, 194 Cal.App.4th at pp. 1490-1491) and ensures the statute’s constitutionality. 

(See Lowery, supra, 52 Cal.4th at p. 427.)

In sum, I would interpret the probation condition required by section 1203.067, 

subdivision (b)(3) as requiring a probationer to waive the privilege against selfincrimination only as to questions asked as “part of the sex offender management 

program.” That is, a probationer may not assert the privilege against self-incrimination 

as grounds for refusing to answer questions during polygraph examinations that are 

administered as part of the sex offender management program, nor during any other part 

of the sex offender management program, such as treatment and risk assessments. (See 

§ 9003, subd. (b).)
8

2. Fifth Amendment Analysis3

The majority relies primarily on Minnesota v. Murphy (1984) 465 U.S. 420 

(Murphy) to find that the section 1203.067, subdivision (b)(3) probation condition 

violates the Fifth Amendment and is overbroad.

In Murphy, the defendant was subject to a probation condition requiring that he 

participate in a treatment program for sexual offenders, report to his probation officer as 

directed, and be truthful with the probation officer “ ‘in all matters.’ ” (Murphy, supra,

465 U.S. at p. 422.) In his treatment program, the defendant admitted a prior rape and 

murder. (Id. at p. 423.) Those admissions were communicated to the probation officer, 

who questioned the defendant. The defendant admitted the crimes to the probation 

officer, but the defendant then sought to suppress those admissions on the ground that his 

statements had been compelled by the probation condition. (Id. at pp. 424-425.)

The United States Supreme Court emphasized that in general, the Fifth 

Amendment is not self-executing: “a witness . . . ordinarily must assert the privilege 

rather than answer if he desires not to incriminate himself.” (Murphy, supra, 465 U.S. at 

p. 429.) The probation condition in Murphy only required the defendant to be truthful, 

and thus the defendant still could have claimed the privilege against self-incrimination. 

(Id. at pp. 436-437.) The Murphy court considered whether there were any applicable 

exceptions to the general rule that the Fifth Amendment is not self-executing. (Id. at 

p. 429.) In particular, the court considered whether to excuse the defendant’s failure to 

 

3

The Attorney General contends that defendant’s Fifth Amendment challenge to 

the probation condition is not ripe for review, since “there is no evidence that [defendant]

has been asked any polygraph questions that call for answers that would or could 

incriminate him in a pending or future criminal prosecution.” However, defendant is 

bringing a facial challenge, which does not require him to show that the condition has yet 

been enforced. (See Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084 [“A facial 

challenge to the constitutional validity of a statute or ordinance considers only the text of 

the measure itself, not its application to the particular circumstances of an individual.”].)
9

assert the privilege against self-incrimination on the basis of the “so-called ‘penalty’ ” 

exception. (Id. at p. 434.)

The penalty exception had been applied in cases where “the State not only 

compelled an individual to appear and testify, but also sought to induce him to forego the 

Fifth Amendment privilege by threatening to impose economic or other sanctions 

‘capable of forcing the self-incrimination which the Amendment forbids.’ [Citation.]” 

(Murphy, supra, 465 U.S. at p. 434.) In Murphy, there was no evidence that the 

defendant would have been penalized for exercising his Fifth Amendment privilege. (Id.

at pp. 437-438.) The probation condition itself “proscribed only false statements; it said 

nothing about his freedom to decline to answer particular questions and certainly 

contained no suggestion that his probation was conditional on his waiving his Fifth 

Amendment privilege with respect to further criminal prosecution.” (Id. at p. 437.) 

Further, there was “no direct evidence that Murphy confessed because he feared that his 

probation would be revoked if he remained silent.” (Ibid.)

The Murphy court explained how the penalty exception could apply to a 

probationer: “if the State, either expressly or by implication, asserts that invocation of 

the privilege would lead to revocation of probation, it would have created the classic 

penalty situation, the failure to assert the privilege would be excused, and the 

probationer’s answers would be deemed compelled and inadmissible in a criminal 

prosecution.” (Murphy, supra, 465 U.S. at p. 435, fn. omitted.) However, the court 

noted, “a State may validly insist on answers to even incriminating questions and hence 

sensibly administer its probation system, as long as it recognizes that the required 

answers may not be used in a criminal proceeding and thus eliminates the threat of 

incrimination.” (Ibid., fn. 7.)

As applied to this case, Murphy establishes that defendant’s Fifth Amendment 

rights are not violated by the probation condition requiring him to waive the privilege 

against self-incrimination as to questions asked during the sex offender management 
10

program. The state has, “by implication, assert[ed] that invocation of the privilege” in

response to such incriminating questions “would lead to revocation” of probation. (See 

Murphy, supra, 465 U.S. at p. 435.) Thus, if defendant makes any statements in response 

to questions posed to him during the sex offender management program, those statements 

will be deemed compelled under the Fifth Amendment and thus involuntary and 

inadmissible in a criminal prosecution. (Ibid.) Since such statements will necessarily fall 

within the penalty exception, they will not be available for use at a criminal prosecution, 

and defendant’s Fifth Amendment rights have not been violated. (See Chavez v. 

Martinez (2003) 538 U.S. 760, 769 [plur. opn. of Thomas, J.] [the Fifth Amendment is 

not violated “absent use of the compelled statements in a criminal case against the 

witness”]; id. at p. 777 [conc. opn. of Souter, J.].)

In sum, because the penalty exception will necessarily apply to statements that 

defendant makes in response to questions asked as part of the sex offender management 

program under compulsion of the section 1203.067, subdivision (b)(3) probation 

condition, the condition itself does not violate the Fifth Amendment.

3. Overbreadth Analysis

“A probation condition that imposes limitations on a person’s constitutional rights 

must closely tailor those limitations to the purpose of the condition to avoid being 

invalidated as unconstitutionally overbroad. [Citation.]” (In re Sheena K. (2007) 40 

Cal.4th 875, 890 (Sheena K.).) “ ‘A statute or regulation is overbroad if it “does not aim 

specifically at evils within the allowable area of [governmental] control, but . . . sweeps 

within its ambit other activities that in the ordinary circumstances constitute an exercise” 

of protected expression and conduct.’ [Citations.]” (People v. Leon (2010) 181 

Cal.App.4th 943, 951.) “The essential question in an overbreadth challenge is the 

closeness of the fit between the legitimate purpose of the restriction and the burden it 

imposes on the defendant’s constitutional rights—bearing in mind, of course, that 
11

perfection in such matters is impossible, and that practical necessity will justify some 

infringement.” (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.)

As noted above, in enacting section 1203.067, subdivision (b), the Legislature 

recognized that it is appropriate to grant probation to a sex offender only if the risks can 

be managed, and that participation in a sex offender management program will help 

manage those risks. More specifically, by enacting section 1203.067, subdivision (b)(3), 

the Legislature recognized that a waiver of the probationer’s privilege against selfincrimination is important to the success of the sex offender management program. The 

Legislature reasonably concluded that allowing sex offenders on probation to refuse to 

answer questions would create an unacceptable danger to the community. (See § 290.03, 

subd. (a)(1) [“Sex offenders pose a potentially high risk of committing further sex 

offenses after release from incarceration or commitment, and the protection of the public 

from reoffending by these offenders is a paramount public interest.”].) If a sex offender 

could claim the privilege against self-incrimination during a risk exam, and thereby hide 

past or new offenses from the treatment team, his or her risk of reoffense could not be 

correctly calculated or managed. (See, e.g., People v. Hubbart (2001) 88 Cal.App.4th 

1202, 1214 [actuarial instrument calculated risk of sexual reoffense based on factors 

including the number of prior sex offenses, convictions for non-sex offenses, and details

about sex offenses].) By requiring every sex offender granted probation to make full 

disclosures and to give up any right to refuse to answer questions posed during polygraph 

examinations or treatment as part of the sex offender management program, the State 

greatly enhances its ability to manage the serious risks posed by sex offenders who 

remain free in the community.

In sum, in light of the legislative intent underlying section 1203.067, 

subdivision (b)(3), I conclude that any limitations on defendant’s Fifth Amendment rights 

are “closely tailor[ed] . . . to the purpose of the condition” and thus are not “invalid[] as 

unconstitutionally overbroad. [Citation.]” (Sheena K., supra, 40 Cal.4th at p. 890.) The 
12

Legislature reasonably determined that a waiver of the privilege against selfincrimination is necessary when a defendant is participating in the sex offender 

management program as part of his or her probation for a sex offense. The Legislature 

enacted section 1203.067, subdivision (b)(3) for the purpose of managing and treating sex 

offenders and protecting the community, not for the purpose of compelling statements to 

be used in criminal prosecutions. Since the condition only requires waiver of the 

privilege against self-incrimination as part of the sex offender management program, it is 

not overbroad.

4. Scope of Polygraph Testing

Defendant also challenges the probation condition imposed pursuant to 

section 1203.067, subdivision (b)(3) insofar as it requires him to “participate in polygraph 

examinations, which shall be part of the sex offender management program.” Defendant 

argues the condition is overbroad and requests we modify the condition so he is required 

“to answer only questions reasonably related to the completion of his probation or his 

criminal conviction.”

Defendant relies on Brown v. Superior Court (2002) 101 Cal.App.4th 313 

(Brown), where the defendant was convicted of stalking while a domestic violence 

restraining order was in effect. The trial court had imposed probation conditions 

requiring the defendant to participate in a stalking therapy program and undergo 

“ ‘periodic polygraph examinations at defendant’s expense, at the direction of the 

probation officer.’ ” (Id. at p. 321.) The Court of Appeal held that the polygraph 

condition was overbroad, ordering it modified so that the questions asked would be 

limited to “those relating to the successful completion of the stalking therapy program 

and the crime of which Brown was convicted.” (Ibid.)

Here, the probation condition requires defendant to “participate in polygraph 

examinations, which shall be part of the sex offender management program.” (See 

§ 1203.067, subd. (b)(3).) The probation condition does not expressly limit the questions 
13

that may be asked during polygraph examinations to those related to the successful 

completion of the program or defendant’s criminal conviction. However, such a 

limitation is inherent in the phrase “which shall be part of the sex offender management 

program.” (Ibid.) In other words, the probation condition requires polygraph 

examinations to be used only in furtherance of a probationer’s treatment, and thus 

requires that the questions asked be relevant to that treatment.

The majority “construe[s] the requirement of participation in polygraph 

examinations as allowing only questions relating to the successful completion of the sex 

offender management program, the crime of which defendant was convicted, or related 

criminal behavior.” (Maj. opn. at p. 28.) I similarly conclude that the probation 

condition need not be modified to expressly state that the questions asked during 

polygraph examinations must be reasonably related to the completion of defendant’s 

treatment program or his conviction, because such limitations are inherent in the 

condition.

5. Conclusion

In sum, I do not believe the probation condition imposed pursuant to 

section 1203.067, subdivision (b)(3) is overbroad or that the probation condition violates 

the Fifth Amendment. I would not strike any language from this probation condition or 

otherwise modify the condition.

C. Section 1203.067, Subdivision (b)(4) Probation Condition

Defendant also challenges the probation condition imposed pursuant to 

section 1203.067, subdivision (b)(4), which requires defendant to waive “any 

psychotherapist-patient privilege to enable communication between the sex offender 

management professional and supervising probation officer, pursuant to Section 290.09.” 

Defendant contends this probation condition is overbroad and violates his constitutional 

right to privacy, because it requires him to “entirely waive the psychotherapist-patient 

privilege.” He contends the condition should be stricken or modified. He suggests the 
14

condition could be modified to “limit the waiver to subjects necessary for rehabilitation” 

and to “limit disclosure of otherwise privileged psychotherapist-patient communications 

to the probation officer and the court.”

Section 290.09 mandates certain communication between the probation officer and 

the certified “sex offender management professionals” who are required to “assess each 

registered sex offender on formal probation.” (§ 290.09, subd. (b)(1).) First, the certified 

sex offender management professional is required to provide the probation officer with 

the probationer’s scores on required risk assessment tools, and the probation officer is 

required to send the scores to the Department of Justice. (Id., subd. (b)(2).) Second, the 

certified sex offender management professional is required to communicate with the 

probation officer “on a regular basis, but at least once a month, about the offender’s 

progress in the program and dynamic risk assessment issues.” (Id., subd. (c).)

Section 1203.067, subdivision (b)(4) mandates that defendant waive the 

psychotherapist-patient privilege only “to enable communication between the sex 

offender management professional and supervising probation officer, pursuant to 

Section 290.09.” Since section 290.09 is explicitly incorporated by reference, and since 

section 290.09 limits the subject matter of the communication between the sex offender 

management professional and the probation officer, I do not believe the condition 

requires defendant to waive the psychotherapist-patient privilege as to any other subjects. 

My construction comports with the plain language of the statute, and it also harmonizes 

the statute with section 290.09. (See Kennedy, supra, 194 Cal.App.4th at p. 1490.)

The majority concludes there is no need to modify the probation condition 

imposed pursuant to section 1203.067, subdivision (b)(4) because it construes the statute 

“as requiring a waiver of the psychotherapist-patient privilege only insofar as it is 

necessary ‘to enable communication between the sex offender management professional 

and supervising probation officer . . . .’ ” (Maj. opn. at p. 38.) I agree there is no need to 

modify the probation condition imposed pursuant to section 1203.067, subdivision (b)(4).
15

III. CONCLUSION

For the reasons stated above, I conclude that the probation condition imposed 

pursuant to section 1203.067, subdivision (b)(3) does not violate the Fifth Amendment 

and is not overbroad. I further conclude that the probation condition imposed pursuant to 

section 1203.067, subdivision (b)(4) is not overbroad. Therefore, I would affirm the 

judgment.

___________________________________________

BAMATTRE-MANOUKIAN, J.
Trial Court: Santa Clara County

Superior Court No.: C1240683

Trial Judge: The Honorable Rene Navarro 

Attorney for Defendant and Appellant Lori A. Quick

Jeffrey David Allen Friday: under appointment by the Court of 

Appeal for Appellant

Attorneys for Plaintiff and Respondent Kamala D. Harris,

The People: Attorney General

Dane R. Gillette,

Chief Assistant Attorney General

Gerald A. Engler,

Senior Assistant Attorney General

Jeffrey M. Laurence,

Supervising Deputy Attorney General

Violet M. Lee,

Deputy Attorney General

People v. Friday

H039404